Inghams Enterprises Pty Limited v Hannigan [2020] NSWCA 82 (04 May 2020)

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Hearing dates: 11 December 2019
Date of orders: 04 May 2020
Decision date: 04 May 2020
Before: Bell P at [1]; Meagher JA at [118]; Gleeson JA at [158]
Decision: (1)   Grant leave to appeal.

 

(2)   Allow the appeal.

 

(3)   Set aside orders (1) and (3) made by Slattery J on 16 September 2019.

 

(4)   Declare that the dispute the subject of the respondent’s Notice of Dispute dated 29 May 2019 is not required to be submitted to arbitration pursuant to cl 23.6 of the Queensland Broiler Chicken Growing Agreement between the parties dated 22 September 2015.

(5)   The respondent pay the appellant’s costs of the proceedings at first instance and on appeal.

Catchwords: ARBITRATION – multi-tiered dispute resolution clause – clause included as a component an arbitration clause for certain types of disputes – proper construction of arbitration clause and its scope – principles applicable to the construction of such clauses.

 

CONTRACT – dispute resolution clause – clause contemplating court proceedings in some circumstances and arbitration proceedings in other circumstances – proper construction of the clause – whether a claim for damages for breach of contract “concerned” a “monetary amount payable and/or owed” “under” the agreement.
CONTRACT – construction and interpretation – multi-tiered dispute resolution clause – principles applicable to construction of dispute resolution clauses.

CONTRACT – waiver – whether commencement of earlier court proceedings seeking declarations as to breach of contract resulted in waiver of right to submit claim for damages for breach of contract to arbitration.

Legislation Cited: Civil Procedure Act 2005 (NSW) s 26(1)
Foreign States Immunities Act 1985 (Cth) s 11(1)
Income Tax Assessment Act 1936 (Cth) s 160U(3)
International Arbitration Act 1974 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s 5(7)
Land Title Act 1994 (Qld) s 62
Supreme Court Act 1970 (NSW) s 101(2)(r)
Cases Cited: AAP Industries Pty Limited v Rehaud Pte Limited [2015] NSWSC 468
Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 724
Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418; [1996] HCA 39
Armacel Pty Ltd v Smurfit Stone Container Corporation (2008) 248 ALR 573; [2008] FCA 592
Attorney General for New South Wales v Melco Resorts & Entertainment Limited [2020] NSWCA 40
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61
Australian Securities Commission v Lord (1991) 33 FCR 144; (1991) 105 ALR 347
BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169; [2008] FCA 551
Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66; (2013) 298 ALR 666
Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468
Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365
Chan v Cresdon Pty Ltd (1989) 168 CLR 242; [1989] HCA 63
Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295
Comandate Marine Corporation v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192
Commissioner of Taxation (Cth) v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520; [2000] HCA 35
Commonwealth v Amann Aviation Pty Ltd (1992) 174 CLR 64; [1991] HCA 54
Concut Pty Ltd v Worrell (2000) 75 ALJR 312; [2000] HCA 64
Continental Bank NA v Aeakos Compania Naviera SA [1994] 1 WLR 588
Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201; [1985] HCA 64
Electra Air Conditioning BV v Seeley International Pty Ltd [2008] FCAFC 169
Electricity Generation Corporation v Woodside Energy Ltd; Woodside Energy Ltd v Electricity Generation Corporation (2014) 251 CLR 640; [2014] HCA 7
Energy Resources of Aust Ltd v Commissioner of Taxation (2003) 52 ATR 120
FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association (1997) 41 NSWLR 117
Faxtech Pty Ltd v ITL Optronics Ltd [2011] FCA 1320
Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40; [2007] 4 All ER 951
Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31; [2015] HCA 43
Francis Gregory Hannigan v Inghams Enterprises Pty Limited [2019] NSWSC 321
Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; (1996) 131 FLR 422
Galafassi v Kelly (2014) 87 NSWLR 119
Gaynor v Attorney General of New South Wales [2020] NSWCA 48
Global Partners Fund Limited v Babcock & Brown Limited (in liq) [2010] NSWCA 196; (2010) 79 ACSR 383
Grocon Constructors (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd [2015] VSCA 190
Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; [2017] FCAFC 170
Harding v Wealands [2007] 2 AC 1; [2006] UKHL 32
Hi-Fert Pty Ltd v Kiukiang Maritime Carriers (No 5) (1998) 90 FCR 1; (1998) 159 ALR 142
HIH Casualty & General Insurance Ltd (in liq) v RJ Wallace (2006) 68 NSWLR 603; [2006] NSWSC 1150
IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466; (1991) 100 ALR 361
Inghams Enterprises Pty Ltd v Francis Gregory Hannigan [2019] NSWSC 1186
Insigma Technology Co Ltd v Alstom Technology Ltd [2009] 3 SLR 936
JTA Le Roux Pty Ltd as trustee for the FLR Family Trust v Lawson [2013] WASC 293
Kraft Foods Group Brands LLC v Bega Cheese Limited (2018) 358 ALR 1; [2018] FCA 549
Lainson Holdings Pty Ltd v Duffy Kennedy Pty Ltd [2017] NSWSC 203
Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 93 ALJR 1164
Mastrobuono v Shearson Lehman Hutton Inc. 514 U.S. 52 (1995)
McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579; [2000] HCA 65
Mineral Resources Ltd v Pilbara Minerals Ltd [2016] WASC 338
Mitsubishi Motors Corp v Soler-Chrysler Plymouth Inc 473 US 614 (1985)
Mobis Parts Australia Pty Ltd v XL Insurance Company SE [2016] NSWSC 1170
Morris-Garner v One Step (Support) Ltd [2019] AC 649; [2018] UKSC 20
Moschi v Lep Air Services Ltd [1973] AC 331; [1972] 4 WLUK 46
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Paharpur Cooling Towers Ltd v Paramount (WA) Ltd [2008] WASCA 110
Paper Products Pty Ltd v Tomlinsons (Rochdale) Limited (1993) 43 FCR 439; [1993] FCA 346
Parnell Manufacturing Pty Ltd v Lonza Ltd [2017] NSWSC 562
Perovich v Whitton (No 2) (2016) 250 FCR 272; [2016] FCAFC 152
Photo Production Ltd v Securicor Transport Ltd [1980] AC 827; [1980] 2 WLUK 146
Plenary Research Pty Ltd v Biosciences Research Centre Pty Ltd [2013] VSCA 217
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; [1985] HCA 14
PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2011] FCAFC 52
Queensland Premier Mines Pty Ltd v French (2007) 235 CLR 81; [2007] HCA 53
Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420; [2000] FCA 547
Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 366 ALR 635
Rinehart v Rinehart (No 3) (2016) 257 FCR 310
Rinehart v Welker (2012) 95 NSWLR 221; [2012] NSWCA 95
Robinson v Harman (1848) 1 Exch 850; 154 ER 363
Rotheberger Australia Pty Ltd v Poulsen [2003] NSWSC 788
Royal Bank of Scotland plc v Babcock & Brown DIF III Global Co-Investment Fund LP [2017] VSCA 138
Samick Lines Co Ltd v Owners of the “Antonis P Lemos” [1985] AC 711
Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332; [1990] HCA 8
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; [2013] HCA 5
Tea Trade Properties Ltd v CIN Properties Ltd (1990) 1 EGLR 155
The Queen v Khazal (2012) 246 CLR 601; [2012] HCA 26
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17
Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530; [2004] HCA 56
Texts Cited: G B Born, International Commercial Arbitration (2nd ed, 2014, Wolters Kluwer)
A Briggs, Agreements on Jurisdiction and Choice of Law (2007, Oxford University Press)
M Davies (ed), Jurisdiction and Forum Selection Clauses in International Maritime Law (2005, Kluwer Law International)
M Davies, A S Bell, P L G Brereton and M Douglas, Nygh’s Conflict of Laws in Australia (10th ed, 2019, LexisNexis Butterworths)
D W Greig and J L R Davis, The Law of Contract (1987, The Law Book Company Limited)
J D Heydon, Heydon on Contract (2019, Lawbook Co)
D Joseph, Jurisdiction and Arbitration Agreements and their Enforcement (3rd ed, 2015, Sweet & Maxwell)
K Lewison, The Interpretation of Contracts (5th ed, 2011, Sweet & Maxwell)
K Lewison, The Interpretation of Contracts (6th ed, 2015, Sweet & Maxwell)
Category: Principal judgment
Parties: Inghams Enterprises Pty Limited (Applicant)
Francis Gregory Hannigan (Respondent)
Representation: Counsel:
P S Braham SC, D Neggo (Applicant)
M S Henry SC (Respondent)Solicitors:
Paradise Charnock O’Brien (Applicant)
Hannigans Solicitors (Respondent)
File Number(s): 2019/307488
Publication restriction: N/A
 Decision under appeal  Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Duty List

Citation:

[2019] NSWSC 1186

Date of Decision:

16 September 2019

Before:

Slattery J

File Number(s):

2019/269478

HEADNOTE

[This headnote is not to be read as part of the judgment]

Inghams Enterprises Pty Limited (Inghams) entered into a chicken growing contract (the Agreement) with Mr Francis Gregory Hannigan (Mr Hannigan), under which Mr Hannigan received batches of one day old chicks from Inghams, grew them in sheds into chickens and returned them to Inghams. For this service, Inghams paid Mr Hannigan a “Fee”, as defined in the Agreement. The Agreement closely regulated the process of the supply of chicks and return of chickens, and the standard of care expected of Mr Hannigan whilst the chicks were in his custody.

On 8 August 2017, Inghams purported to terminate the Agreement and refused to supply chicks for growing to Mr Hannigan. On 30 August 2017, Mr Hannigan commenced proceedings in the Supreme Court seeking a declaration that Inghams’ purported termination of the Agreement was wrongful (the 2017 proceedings). He did not seek damages in those proceedings, but he reserved his rights in correspondence and before the Court. The 2017 proceedings were heard by Robb J, who entered judgment for Mr Hannigan on 29 March 2019, declaring in effect that Inghams had wrongfully terminated the Agreement. Inghams resumed supplying chicks to Mr Hannigan on or about 17 June 2019.

Mr Hannigan issued a Notice of Dispute to Inghams dated 29 May 2019, seeking damages from Inghams for loss of profits, based on Inghams’ failure to supply chicks to Mr Hannigan from 8 August 2017 (the purported termination date by Inghams) to 17 June 2019 (the resumed dated of supply). A mediation was unsuccessfully undertaken by the parties on 28-29 August 2019, and thus Mr Hannigan contended that cl 23.6 of the Agreement entitled him to refer the dispute to arbitration. Clause 23.1 of the Agreement provided:

“A party must not commence court proceedings in respect of a dispute arising out of this Agreement (“Dispute”) (including without limitation any Dispute regarding any breach or purported breach of this Agreement, the interpretation of any of its provisions, any matters concerning a party’s performance or observance of its obligations under this Agreement, or the termination or the right of a party to terminate this Agreement) until it has complied with this clause 23.”

Clause 23 made provision, in sub-clauses 3 and 4, for the initial informal and then formal mediation of disputes. Clause 23.6 provided as follows:

“If:

23.6.1   the Dispute concerns any monetary amount payable and/or owed by either party to the other under this Agreement, including without limitation matters relating to determination, adjustment or renegotiation of the Fee under Annexure 1 or under clauses 9.4, 10, 11, 12, 13 and 15.3.3; and

23.6.2   the parties fail to resolve the Dispute in accordance with Clause 23.4 within twenty eight (28) days of the appointment of the mediator

then the parties must (unless otherwise agreed) submit the Dispute to arbitration using an external arbitrator (who must not be the same person as the mediator) agreed by the parties or, in the absence of agreement, appointed by the Institute Chairman.”

Inghams commenced proceedings in the Supreme Court to restrain the referral to arbitration, and sought declarations that (a) Mr Hannigan’s damages claim did not fall within cl 23 of the Agreement and that (b) even if it did, Mr Hannigan had waived any entitlement to arbitrate the dispute under cl 23 because of his commencement of the 2017 proceedings.

The primary judge held that Mr Hannigan was entitled to refer his damages claim to arbitration under cl 23.6 of the Agreement.

The principal issues before the Court of Appeal were:

  1. Whether the primary judge erred in his construction of cl 23.6 of the Agreement, in finding that the claim for damages fell within cl 23.6.1 and could be referred to arbitration (the construction issue);
  2. Whether the primary judge erred in not finding that Mr Hannigan had waived his right to refer the dispute to arbitration, pursuant to cl 23.6 of the Agreement (the waiver issue).

The Court held (Meagher JA, Gleeson JA agreeing, Bell P dissenting), granting leave to appeal and allowing the appeal:

As to the construction issue:

  1. By Meagher and Gleeson JJA: the primary judge erred in his construction of cl 23.6 of the Agreement. The subject matter of the notified dispute, being a claim for unliquidated damages, was not a claim to or about an amount “payable” or “owed” by Inghams to Mr Hannigan under the Agreement, nor was it a dispute which affected or related to the negotiation, adjustment or determination of any such amount. As the claim did not concern a monetary amount payable under the Agreement, and as the obligation to pay damages for breach of contract was not created by or did not arise under the Agreement, the Court held that the dispute was not a dispute which fell within cl 23.6.1. Accordingly, the dispute was not one which must have, in the absence of any ad hoc agreement, been submitted to arbitration: [127]-[156]; [158].
  2. By Bell P (dissenting): the primary judge did not err in his construction of cl 23.6 of the Agreement. A liberal approach should be applied to the construction of the dispute resolution clause, based both on the legal principles applicable to dispute resolution clauses and a number of textual indications in cl 23.6.1, suggesting that the parties intended the clause to be construed broadly. Accordingly, the Dispute in question did fall within the ambit of cl 23.6, with Mr Hannigan entitled to pursue his claim for damages by way of arbitration: [68]-[107].
  3. Discussion by Bell P of dispute resolution clauses and the principles applicable to their interpretation: [48]-[67] (Bell P).

As to the waiver issue:

  1. By Meagher and Gleeson JJA: as the dispute was not required to be referred to arbitration, the waiver issue did not arise. However, agreeing with Bell P’s reasoning in this respect, if the dispute was required to be referred to arbitration, Mr Hannigan had not waived his right to insist that occur: [118]; [158].
  2. By Bell P: the primary judge did not err in finding that Mr Hannigan had not waived his right to refer the dispute to arbitration. There had been no unequivocal abandonment in or by reason of the 2017 proceedings of any right to arbitrate the question of damages for breach of contract at some time in the future. Further, cl 23.11 of the Agreement authorised court proceedings to be pursued for urgent declaratory relief, and the relief sought in the 2017 proceedings could be so characterised: [109]-[112].

Judgment

  1. BELL P: This is an application for leave to appeal from the decision of Slattery J (the primary judge) of 16 September 2019, concerning the proper forum for the determination of a claim for damages for breach of contract, the relevant contract being a standard form chicken growing contract (the Agreement) between Mr Francis Gregory Hannigan (Mr Hannigan) and Inghams Enterprises Pty Limited (Inghams).
  2. Mr Hannigan sought to have his claim referred to arbitration, pursuant to cl 23.6 of the Agreement but Inghams resisted, initiating proceedings in this Court to restrain the commencement or continuation of any arbitration and seeking declarations as to the proper construction of the Agreement.
  3. As shall be seen, the dispute resolution clause in the Agreement contemplates the litigation of some disputes in court proceedings and the arbitration of other disputes, following a preliminary mediation requirement. At first instance, the primary judge held that the claim for damages fell within the scope of the arbitration sub-clause and, accordingly, declined to restrain the commencement or continuation of the arbitration and dismissed Inghams’ proceedings: [2019] NSWSC 1186.
  4. Inghams seeks leave to appeal because of the fact that it was considered that the value of the outcome of the real issue in dispute, namely the question of forum, did not exceed $100,000 with the consequence that s 101(2)(r)of the Supreme Court Act 1970 (NSW) applied: see, generally, Gaynor v Attorney General of New South Wales [2020] NSWCA 48 at [13]-[20].
  5. Inghams raised two main issues on the prospective appeal:
  6. whether the primary judge erred in finding that the notified dispute between the parties must be referred to arbitration, pursuant to cl 23.6 of the Agreement; and
  7. whether the primary judge erred in not finding that Mr Hannigan had waived his right to refer the dispute to arbitration pursuant to cl 23.6 of the Agreement.
  8. In my opinion, leave to appeal should be granted in circumstances where final and injunctive declaratory relief was sought, the arguments were not free of complexity and called for a consideration of the principles applicable to the interpretation of a complex dispute resolution clause, and the ultimate commercial ramifications for the parties were significant.

The Agreement

  1. Under the Agreement entered into on 22 December 2015, Mr Hannigan receives batches of one day old chicks (referred to in the Agreement as “Birds”) from Inghams, grows them in sheds into chickens and returns them to Inghams. For this service, Inghams pays Mr Hannigan a “Fee”, as defined in the Agreement. The Agreement closely regulates the process of the supply of chicks and return of chickens, and the standard of care expected of Mr Hannigan whilst the chicks are in his custody.
  2. Inghams’ general obligations under the Agreement are defined in cl 3.1 and 3.2 of the Agreement, as follows:

“3.1    Subject to this Agreement, the availability of Chickens and the Grower’s capacity to raise those Chickens (in accordance with the terms and conditions of the Agreement), Inghams will supply Batches to the Grower and the Grower will accept and grow those Birds for Inghams in the Sheds.

3.2    Inghams will so far as is reasonably practicable supply the Grower with Batches at placement densities commensurate with the Commercial Growers or such other placement densities which may be agreed by Inghams with the Grower Representative from time to time but subject to variation:

3.2.1    in accordance with Annexure 3;

3.2.2    if the Grower requests that it receive a quantity of Birds for a particular Batch that is less than would be required pursuant to clause 3.2;

3.2.3    taking into consideration any relevant Animal Welfare Standards;

3.2.4    taking into consideration any broiler growing standards;

3.2.5    taking into consideration any other provision of this Agreement;    and/or

3.2.6    if Inghams’ farming standards change or if the breed or    genetics of the Chickens change.”

  1. One oddity of the Agreement which may present issues in the assessment of any claim for damages, irrespective of the forum in which that claim is determined, is that it does not appear to specify the number of Batches that Inghams will supply per year or during the life of the Agreement. The reference to “placement densities commensurate with the Commercial Growers” in cl 3.2 appears to reflect the fact that a grower such as Mr Hannigan is a member of a pool or collective and, by a complex series of formulae in Annexures 2 and 3 of the Agreement, the fee paid to and efficiency rating of any one grower in the pool is affected by his or her performance relative to other growers. It is not necessary to go into the complexity of such formulae, other than to note that they have implications for the calculation of the damages claimed in the present case and the potential complexity of that exercise.
  2. Mr Hannigan’s general obligations as Grower are provided for in cl 4, with cl 4.1 to 4.7 of the Agreement providing as follows:

“The Grower must:

4.1    accept each Batch delivered by Inghams to the Grower pursuant to this Agreement and raise the Birds in each Batch to the stage of maturity determined by Inghams;

4.2    raise the Birds in accordance with the Manual;

4.3    prepare the Sheds in readiness for each Batch;

4.4    be available or present on the Premises when each Batch is delivered;

4.5    place the Birds in the Sheds upon their delivery;

4.6    furnish all labour, utilities, water, electricity, litter, bedding and all other supplies (other than those Inghams agrees to supply under this Agreement) required to raise the Birds and comply with its obligations under this Agreement and the Manual;

4.7    provide adequate well-maintained Sheds for the Birds as required by the Manual …”

  1. Clause 9.1 of the Agreement provides that:

“For each Batch raised by the Grower and collected by Inghams from the Grower, Inghams will pay the Grower the Payment calculated on the basis of the Fee but varied as may be required by clauses 9, 10 and 11 and Annexure 1”.

  1. Clause 9.4 of the Agreement provides that:

“Inghams may deduct from the Payment:

9.4.1   any amount referable to the weight and/or number of Birds rejected as unfit for processing by Inghams; or

9.4.2   any amount referable to the weight of Birds that are unsuitable based on Animal Welfare Standards including but not limited to Paw Burns, Breast Blisters and Feed-in-Crop received from a Batch of Birds from the Growers premises (including the reasonable costs incurred to return the production process at Inghams’ processing plant to meet the relevant food safety standards). The Bird standards and relevant food safety standards are outlined in the Manual; and

9.4.3   any amount referable to Birds which are rejected by reason of the Grower failing to meet appropriate accreditation standards, meaning those Birds can only be processed as a non-accredited commercially grown Bird. In such cases the Fee paid to the Grower in respect of those Birds will be reduced to the current Collective Grower commercially grown Bird fee at that time;

if the number of Birds so rejected exceeds Inghams normal and reasonable expectations at such time”.

  1. Clause 10.1 of the Agreement provides that:

“From the commencement of this agreement Inghams will make Payments to the Grower calculated in accordance with Annexure 1 and Annexure 2”.

  1. Clause 7 of Annexure 1 highlights the complexity of the calculation of the Fee payable for chickens collected by Inghams from the growers, making provision for detailed adjustment by the application of productivity criteria. Again, it is not necessary to descend to further detail in relation to this calculation, other than to note that the calculation of a Fee payable (and thus the calculation of any damages for breach of contract) would not appear to be a straightforward exercise free from complexity.
  2. Clause 11 of the Agreement provides:

“11.1   Where the Payment to be paid to the Grower in respect of any Batch is less than 85% of the Fee in respect of that Batch as a consequence of a single event determined in writing by Inghams to be a disaster, then:

11.1.1   if the disaster is caused by any negligent or deliberate action by or on behalf of Inghams:

(a)   the Batch will not be assessed by reference to the Pool Payment System;

(b)   the Batch will not be considered during the determination of the Grower’s Efficiency Rating; and

(c)   the Grower shall be paid 100% of the Fee for the number of birds placed, reduced by the average mortality of the relevant period;

11.1.2   if the parties agree that Clause 11.1.1 does not apply and neither party is deemed to have caused the poor performance of the batch, the Grower shall be paid 100% of the group growing fee for all birds collected; or

11.1.3   if the parties agree that the Grower and Inghams have each partially contributed to the cause of the disaster, the Grower shall be paid a percentage between 65% and 100% of the group growing fee, as agreed between Inghams and the Grower Representative (or failing agreement, as determined in accordance with clause 23).

11.2    Where the Grower is not responsible for causing the disaster (as determined under Clause 11.1.1 or 11.1.2) the Batch shall be excluded from any determination of the Grower’s Efficiency Rating”.

  1. Clause 12 of the Agreement provides:

“12.1   The Grower will bear financial losses suffered by Inghams (limited to the cost of all goods supplied to the Grower in accordance with clause 3.2 and excluding all consequential and indirect losses) caused by the negligence of the Grower in raising the Birds, and Inghams may deduct such losses from any Payments due to the Grower subject to the Payment for the Batch in respect of which the losses were suffered being calculated on the basis of 100% of the Fee for all Birds collected.

12.2   Inghams will notify the Grower in writing if the Grower is to be held liable under Clause 12.1.

12.3   Inghams may collect from the Grower and/or raise (or arrange to be collected and/or raised) any Birds to which any losses under Clause 12.1 are referable, in which case:

12.3.1   Inghams will notify the Grower in writing of its intention to do so; and

12.3.2   Inghams may charge to and recover from the Grower the losses and all reasonable expenses incurred by Inghams in taking action under this Clause 12.3

12.4   Any dispute relating to the amount of any loss pursuant to this Clause 12 will be resolved in accordance with clauses 23.4 to 23.10 (inclusive), provided that Inghams will pay to the Grower within fourteen (14) days of the Friday of the week in which the last Birds in the Batch the subject of a notice under Clause 12.2 are collected by Inghams one half of the Payment determined by it to be due to the Grower in respect of the relevant Batch, with an adjustment to be made after the resolution of the Dispute”.

  1. Clause 15.3.3 of the Agreement provides:

“if any amendments to the Manual are likely to cause a material increase in the cost to the Grower of performing its obligations under this Agreement, the parties will re-negotiate the Fee having regard to the effect of the relevant amendments and in the absence of agreement the matter will be resolved in accordance with clauses 23.4 to 23.10 inclusive”.

  1. The Agreement contains a dispute resolution clause which is the central clause at issue in the present proceedings. Clause 23 relevantly provides:

“23.1   A party must not commence court proceedings in respect of a dispute arising out of this Agreement (“Dispute”) (including without limitation any Dispute regarding any breach or purported breach of this Agreement, the interpretation of any of its provisions, any matters concerning a party’s performance or observance of its obligations under this Agreement, or the termination or the right of a party to terminate this Agreement) until it has complied with this clause 23.

23.2   A party claiming that a Dispute has arisen must notify the other party to the Dispute in writing and set out details of the Dispute.

23.3   Each party must use its best efforts to resolve the dispute during the period of thirty (30) days (or such longer period not exceeding ninety (90) days as the parties may mutually agree) after a notice is given under clause 23.2 (“Initial Period”).

23.4   If the parties are unable to resolve the Dispute within the Initial Period (or any extension of that period which may be agreed in writing) then:

23.4.1   they must within a further seven (7) days appoint a mediator to mediate the Dispute; or

23.4.2   if the parties fail to agree on a mediator within that time, either of them may refer the Dispute for mediation to a mediator nominated by the then Chairman for the time being of the State Branch of the Institute of Arbitrators and Mediators Australia,

and the parties must thereafter mediate the Dispute.

23.5   The terms on which the mediation is conducted and the procedure for the mediation will unless otherwise agreed in writing between the parties and the mediator be in accordance with and subject to the Institute of Arbitrators and Mediators Australian (IAMA) Rules for the conduct of Commercial Mediation (or any rules substituted for those Rules by the Institute) applicable at that date.

23.6    If:

23.6.1   the Dispute concerns any monetary amount payable and/or owed by either party to the other under this Agreement, including without limitation matters relating to determination, adjustment or renegotiation of the Fee under Annexure 1 or under clauses 9.4, 10, 11, 12, 13 and 15.3.3; and

23.6.2   the parties fail to resolve the Dispute in accordance with Clause 23.4 within twenty eight (28) days of the appointment of the mediator

then the parties must (unless otherwise agreed) submit the Dispute to arbitration using an external arbitrator (who must not be the same person as the mediator) agreed by the parties or, in the absence of agreement, appointed by the Institute Chairman.

23.7   The parties agree that the arbitration of any matter referred for arbitration will be undertaken by the arbitrator in accordance with and will be governed by the IAMA Arbitration Rules.

23.8   The parties must use their reasonable endeavours to enable the arbitrator to make a determination as quickly as possible and the arbitrator must (unless otherwise agreed in writing) make that determination within 2 (two) months of accepting the appointment. For that purpose the parties agree to co-operate with the arbitrator and each other in fixing a timetable and taking such steps as are required under that timetable or as may otherwise be reasonably directed by the arbitrator in order to enable the arbitrator to complete the arbitration with[in] that period.

23.9   The written determination of the arbitrator of any matter referred is final and binding on the parties (except for manifest error or fraud).

23.10    Each party must (as applicable):

23.10.1   unless otherwise agreed bear its own costs of resolving a Dispute in accordance with this Clause 23 (other than the costs of an arbitration) and bear equally the fees and proper out of pocket expenses of the mediator and any other third party expenses (including venue hire) related to the mediation; and/or

23.10.2   bear in the proportions and to the extent determined by the arbitrator the costs of the arbitration and any related costs.

23.11   Nothing in this Clause 23 shall prevent the making of an application to the court by any party to the dispute for urgent injunctive or declaratory relief”.

The 2017 proceedings and the proceedings at first instance

  1. Before considering the proceedings at first instance, an earlier set of proceedings between the parties should be noted.
  2. On 8 August 2017, Inghams purported to terminate the Agreement and refused to supply chicks for growing to Mr Hannigan, who maintained in response that the Agreement was still on foot. Inghams contended that there was a chicken growing relationship between the two parties which was not governed by the Agreement because of Mr Hannigan’s failure to sign and return the Agreement document. Alternatively, Inghams contended that even if it were bound by the terms of the Agreement, it was entitled to terminate it on account of Mr Hannigan’s breach, due to his alleged failure to feed thousands of chickens in contravention of animal welfare standards, and because of his alleged failure to provide Inghams, from time to time, with certain documents relating to the weight of the chickens.
  3. Mr Hannigan commenced proceedings in the Supreme Court on 30 August 2017 (the 2017 proceedings), seeking a declaration that Inghams’ purported termination of the Agreement was wrongful. He did not, however, seek damages in those proceedings and did not (and has never) terminated the Agreement. The speed with which proceedings were commenced reflected their urgency from Mr Hannigan’s perspective. His business and livelihood were under threat and he wanted the Agreement to continue, seeking a declaration in effect that it remained on foot. At [29]-[30] of his judgment, the primary judge observed that:

“Mr Hannigan’s decision not to include a claim for consequential loss was a deliberate one, constrained as it was, he says, by the commercial circumstances he faced. Mr Henry SC, who also appeared for Mr Hannigan in the 2017 proceedings, explained this to Robb J at a directions hearing on 10 May 2018, in the following terms:

‘HENRY:   There’s no claim for damages presently, and I’m not suggesting it would arise in these proceedings. The position on that front is that the plaintiff has reserved its position. Whether it at a later point in time brings a claim for damages is obviously yet to be seen. Frankly, the reason for that approach was to try to have this resolved as soon as possible, because the position is that there’s a farm with substantial chicken sheds on it which are empty and have been empty since – I can’t recall the date in particular, but it would be late August last year.

So the proceedings were brought in the hope to have the question of termination resolved as expeditiously as possible without being delayed by complicating things with further claims for damages and the associated time and cost associated with it. So the plaintiff won’t be claiming damages in these proceedings, but that shouldn’t be taken as – that’s why it’s confined in the way it is.’

The commercial reasoning behind this approach is understandable. Mr Henry SC’s then statement to the Court is consistent with Mr Hannigan’s evidence adduced in these proceedings about his state of mind at the time. He was not cross-examined in these proceedings and his affidavit evidence is accepted. Mr Hannigan explained, ‘I wanted to have that dispute determined as quickly as possible’. He has six chicken sheds on his property, which collectively housed approximately 210,000 chickens. The logistics and costs of running those sheds are substantial. For that reason he said, ‘I wanted certainty as to whether the Contract remained on foot as soon as possible’. His belief was that ‘the quickest way in which I was likely to obtain that certainty, by a judgment of the Court, was to confine the matters in dispute in the [2017] proceedings’. He not unreasonably believed that bringing a claim for damages in the 2017 proceedings would delay, complicate and increase the costs of the 2017 proceedings. Consistently with the position, his counsel stated to the Court, he certainly thought, as he said, that, ‘throughout the course of the [2017] proceedings I believed that I had reserved my position to claim damages at a later point if I had such a claim’.”

  • The 2017 proceedings were heard by Robb J who entered judgment for Mr Hannigan on 29 March 2019, declaring in effect that Inghams had wrongfully terminated the Agreement: Francis Gregory Hannigan v Inghams Enterprises Pty Limited [2019] NSWSC 321. Inghams resumed supplying chicks to Mr Hannigan on or about 17 June 2019.

Subsequent claim for damages and jurisdictional dispute

  • Mr Hannigan issued a Notice of Dispute to Inghams dated 29 May 2019, seeking damages from Inghams for loss of profits, based on Inghams’ failure to supply chicks to Mr Hannigan from 8 August 2017 (the purported termination date by Inghams) to 17 June 2019 (the resumed date of supply).
  1. The “Details of Dispute” were relevantly outlined as follows:

“1.    Inghams Enterprises Pty Ltd have failed to supply chickens to Francis Hannigan (Avoca Vale Farm) from 8th August 2017 to 17th June 2019 (date estimated)[.] Inghams Enterprises Pty Ltd are in breach of the Contract for not supplying chickens.

  1.    Francis Hannigan has suffered financial loss as a result of Inghams Enterprises Pty Ltd not supplying chickens being 661 days x $3,031.70 per day being $1,992,055.70.
  2.    Francis Hannigan claims:-

(i)   $1,992,055.70

(ii)   Damage to sheds – from lack of use (estimated $150,000.00);

(iii)   Electricity – locked into Contract with supplier (details to be    supplied);

(iv)   Interest (Estimated $100,000.00);

(v)   Legal fees (estimated $50,000.00 plus legal fees on Supreme Court proceedings).

(vi)   Miscellaneous $20,000.00

  1.    The Initial Period (Clause 23.3) commences on Thursday 30 May 2019 and ceases 30 days thereafter – 29 June 2019.
  2.    For your ease of reference Clause 23 is attached.”
  3. A mediation was unsuccessfully undertaken by the parties on 28-29 August 2019 and thus Mr Hannigan contended that cl 23 of the Agreement entitled him to refer the dispute to arbitration (see at [18]above).
  4. Inghams commenced proceedings in the Supreme Court to restrain the referral to arbitration, and for declarations that (a) Mr Hannigan’s damages claim did not fall within cl 23 of the Agreement and that (b) even if it did, Mr Hannigan had waived any entitlement to arbitrate the dispute under cl 23 because his commencement of the 2017 proceedings meant that he had abandoned reliance upon cl 23 at that time.

The primary judgment

  1. The primary judge held that Mr Hannigan was entitled to refer his damages claim to arbitration under cl 23 of the Agreement, and that he had not waived that entitlement by commencing the 2017 proceedings.
  2. After referring to the familiar principles concerning the interpretation of commercial contracts articulated by the High Court in cases such as Electricity Generation Corporation v Woodside Energy Ltd; Woodside Energy Ltd v Electricity Generation Corporation (2014) 251 CLR 640; [2014] HCA 7 (Woodside) and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd(2015) 256 CLR 104; [2015] HCA 37 (Mount Bruce), the primary judge observed (at [56]) that “[w]ithin the broad canons of construction laid down by cases such as Woodside and Wright Prospecting, arbitration clauses draw specific considerations into focus.” In this respect, his Honour referred to the well-known decision of Gleeson CJ in Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165 (Francis Travel), where the Chief Justice observed that:

“An extensive examination of the many cases dealing with the meaning and effect of various common arbitration clauses in contracts was undertaken by Hirst J in Ethiopian Oilseeds v Rio del Mar [1990] 1 Lloyd’s Rep 86. As his Lordship demonstrated, the expression ‘arising out of’ has usually been given a wide meaning. Some older cases, such as Crane v Hegeman-Harris Co Inc [1939] 4 All ER 68 and Printing Machinery Co Ltd v Linotype & Machinery Ltd [1912] 1 Ch 566, which held that arbitration agreements expressed in a certain manner or entered into in certain circumstances did not permit an arbitrator to deal with a claim for rectification, have been confined by later authorities to their special facts, and should not now be regarded as indicating the correct general approach to problems of this kind.

When the parties to a commercial contract agree, at the time of making the contract, and before any disputes have yet arisen, to refer to arbitration any dispute or difference arising out of the agreement, their agreement should not be construed narrowly. They are unlikely to have intended that different disputes should be resolved before different tribunals, or that the appropriate tribunal should be determined by fine shades of difference in the legal character of individual issues, or by the ingenuity of lawyers in developing points of argument.”

The primary judge noted that these principles were further discussed by Bathurst CJ in Rinehart v Welker (2012) 95 NSWLR 221; [2012] NSWCA 95 (Welker), and by the Full Court of the Federal Court of Australia in Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; [2017] FCAFC 170 (Hancock Prospecting). He referred in particular to Bathurst CJ’s observation in Welker at [121] that, irrespective of the language of the clause, the Court should not apply a presumption that parties are likely to have intended all of their disputes to be decided by the one tribunal.

  1. The essence of the primary judge’s reasoning is contained in [59]-[66] of the primary judgment. His Honour began by noting the breadth of the word “concerns” in cl 23.6 of the Agreement, stressing that it was not confined to claims in debt or amounts payable or that may be calculated as payable arising under express terms of the Agreement: at [59]. His Honour then observed (at [60]) that:

“Giving appropriate emphasis to the word ‘concerns’ in clause 23.6 readily accommodates within the words of the Contract the considerations that Gleeson CJ emphasised in Francis Travel about the approach to be considered in construing arbitration clauses.”

  1. His Honour then accepted the submission by senior counsel for Mr Hannigan that the reference to cl 12 in cl 23.6 provided a telling answer to Inghams’ submission that the Agreement contemplated that arbitration was to be used solely for monetary disputes, such as in relation to the calculation of a Fee under the various formulae contained in the Agreement.
  2. The submission accepted by the primary judge was that “clause 12.1 defies that proposition.” As the primary judge held (at [62]), “[n]o monetary amount is able to be directly calculated from clause 12, as being payable under the Contract. Rather, clause 12 in substance describes no more than a claim for damages that Inghams may have, as its words bear out: ‘the Grower will bear financial lossessuffered by Inghams’.” (emphasis in original).
  • The significance of this submission lay in the fact that no genus of dispute could be derived from the specific clauses referred to in cl 23.6.1 to suggest what did and did not fall within the scope of the arbitration agreement constituted by that sub-clause. This was only emphasised, in the primary judge’s opinion, by the fact that that clause used the words “including without limitation”: at [63].
  • The primary judge then observed (at [64]) that:

“…Inghams’ construction of clause 23 introduces a degree of arbitrariness to the operation of the clause that does not seem consonant with the predictable operation of a clause designed to provide rapid certainty in a commercial contract. As Mr Henry SC points out, if Mr Hannigan received chicks and performed his part of the bargain by growing them and they were in turn collected by Inghams, ordinarily the Fee calculated in accordance with clause 9 would become due to Mr Hannigan. Mr Hannigan could attempt to recover the fee by suing on clause 9 as an action in debt. In that case, clause 23.6.1 would operate to allow the dispute to be referred to arbitration. Alternatively, Mr Hannigan could sue to recover the money as damages for breach of contract, that is, a breach of the obligation to pay the Fee. In these circumstances, clause 23.6.1 would, on Inghams’ construction, not operate to allow referral of the dispute to arbitration. Such inconsistency in outcome between two modes of suing for non-payment of the same fee could hardly have been intended by the contracting parties.”

His Honour continued (at [65]):

“… it does no violence to the words of clause 23.6.1 to see that in an action for breach of contract the calculation of the quantum of the ‘monetary amount payable and/or owed by either party to the other under this agreement’ is the measure of the ultimate damages that may be awarded for breach of this Contract. What is actually payable as a Fee under the Contract would be a critical integer in any damages calculation at the suit of Mr Hannigan. At least in that sense, it can be said without difficulty that the dispute ‘concerns’ such ‘money amounts’.

  • On the question of waiver, the primary judge held that the bringing of the 2017 proceedings was not an abandonment of a right to seek damages in a subsequent arbitration, that Mr Hannigan had reserved his right to do so and that this was apparent from the terms of [24] of the earlier decision in the 2017 proceedings, in which Robb J had said:

“Thirdly, it is notable that, by his prayers for relief, Mr Hannigan only seeks declarations that the parties are bound by a particular agreement, and that Inghams’ 8 August 2017 letter did not terminate the agreement. Mr Hannigan has not sought any consequential relief, either in the nature of orders obliging Inghams to implement the agreement, or ordering Inghams to pay damages to Mr Hannigan for breach of the agreement. As Inghams ceased to deliver chickens to Mr Hannigan after it purported to terminate the agreement, it may be imagined that Mr Hannigan may have suffered some damage. The Court does not know what Mr Hannigan’s aspirations are concerning the possible continuity of the performance of the agreement, if it is found by the Court to be valid and to continue in effect. The Court does not know what course Inghams proposes to take in that event. If Mr Hannigan succeeds in these proceedings, the only result will be that he will establish that he has an agreement in terms of the Inghams Agreement, and that the agreement has not been terminated. Mr Hannigan will apparently be satisfied with that outcome, and Inghams has not suggested that Mr Hannigan’s claims are incomplete as he has not sought in these proceedings all of the relief to which he may be entitled. As the parties have been content to proceed on that basis, so will the Court.”

  1. Further, the primary judge characterised the 2017 proceedings as falling within cl 23.11 of the Agreement, concluding that Mr Hannigan’s “election to take the course of commencing proceedings in the Court comes within an exception to clause 23 in the Contract and is not incompatible with his present attempts to use of [sic] clause 23”: at [82].

Submissions on appeal

  • As noted at [5]above, Inghams raised two issues which may conveniently be labelled “the construction issue” and “the waiver issue”.

The construction issue

  1. In relation to the construction issue, Inghams contended that the primary judge erred in his construction of cl 23.6 of the Agreement, submitting that the correct construction of cl 23.6 is as follows:

“a.    it applies only where the dispute concerns the monetary amount – the monetary amount must itself be the subject matter of the dispute;

  1.    the phrase payable and/or owed means that the monetary amount must be a liquidated amount due for payment (which the amount claimed in the dispute notice is not, because it is not a payment actually earned by Mr Hannigan for raising chickens); and
  2.    it must arise “under the agreement” such that the obligation to pay is found in a clause of the agreement (rather than as a secondary obligation to pay damages).” (emphasis in original).
  3. In written submissions, Inghams raised the following textual considerations as to why its construction of the clause should be preferred:
  4. As a matter of ordinary language, a dispute “concerns” a monetary amount payable under an agreement if it is a dispute about the monetary amount. It is not sufficient that one integer in the calculation of a disputed claim is a monetary amount that would have been payable under the Agreement had different circumstances come to pass.
  5. The scope of cl 23.6 is to be construed by reference to the differently and more broadly drafted cl 23.1, with such difference in drafting weighing heavily against a broad reading of cl 23.6. In this respect, it was submitted that the primary judge’s construction of cl 23.6 tended to remove that distinction.
  6. The “list” of matters referred to in cl 23.6.1 includes matters relating to “determination, adjustment or renegotiation of the Fee” or a number of other specified clauses, all of which concern the manner of calculation or adjustment of various monetary amounts payable under the Agreement. It was submitted that, although the list was obviously not intended to be exhaustive, using as it did the phrase “including without limitation”, it was nonetheless relatively narrow in its scope.
  7. The use of the phrase “payable and/or owed” suggests that damages claims were not intended to be covered, as the word “payable” connotes a legally enforceable obligation to pay. In this respect, reference was made to Grocon Constructors (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd [2015] VSCA 190 at [118ff]. It was submitted that there was no legally enforceable obligation to pay damages for breach of the Agreement pending the judicial determination of Mr Hannigan’s claim and that no money could be “owed” until determination of the claim. Thus, it was submitted that the dispute in the present case did not concern any amount “payable and/or owed” by Inghams.
  8. The need for amounts payable to be payable “under the agreement” maintained a distinction between primary obligations to pay money (which might be owed or payable under the Agreement) and secondary obligations arising upon breach (which might become payable upon judgment being given by reason of the judgment, but which are not ever payable “under the agreement”).
  • In oral submissions, Mr Braham SC who appeared on behalf of Inghams attacked the primary judge’s reliance on Francis Travelto justify a broad interpretation of the language used in cl 23.6. He submitted that Gleeson CJ’s observations in that case proceeded on the basis, to use the Chief Justice’s language at 165,that the parties were “unlikely to have intended that different disputes should be resolved before different tribunals”. In the present case, however, Mr Braham suggested that the parties had contemplated this very outcome, drawing a distinction in this regard between the language of cl 23.1 and 23.6.1. As such, it was submitted, there was no justification for construing cl 23.6 broadly.
  1. Mr Braham also submitted in oral argument that “[t]he Agreement clearly needed a rapid dispute resolution procedure for fee calculation and it was provided by [cl] 23.6.1”.
  2. Mr Hannigan submitted that Inghams’ submissions should be rejected for the following reasons:
  3. Inghams’ submissions involved form prevailing over substance. For example, if Mr Hannigan fulfilled his contractual obligations by growing chicks and, in breach of its obligations, Inghams refused to pay him, he could recover the outstanding money by an action in debt or an action for damages for breach of contract. Although both actions would seek recovery of the same unpaid amount, on Inghams’ construction of c 23.6.1 of the Agreement, the former action would have to be determined by arbitration, whereas the latter action would have to be determined by a court.
  4. The dispute the subject of Mr Hannigan’s damages claim need not be confinedto an amount payable and/or owed under the Agreement. As specified under cl 23.6.1 of the Agreement, provided it “concerns” such an amount, the dispute will fall within the relevant clause. In view of the primary judge’s finding at [65] that the Fee payable to Mr Hannigan under the Agreement would be a “critical integer in any damages calculation at the suit of [the respondent]”, the dispute the subject of that claim relates to or is connected with the amount payable and/or owed under the Agreement.
  5. Inghams’ submission that the monetary amount must be a liquidated amount due for payment was at odds with the terms of cl 23.6.1, and its submission that cl 23.6.1 applies only to primary obligations, but not secondary obligations, is misplaced.
  6. Inghams’ submission that no monetary amount was payable within the meaning of cl 23.6.1 of the Agreement because there “is no legally enforceable obligation to pay damages for breach of the agreement pending the judicial determination of Mr Hannigan’s claim” was incorrect. Referring to Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 at 375,it was submitted that an entitlement to damages accrues upon breach of contract. Further, it was submitted that it did not follow from the fact that the quantum of damages may not be ascertained at the date of breach that there is no legally enforceable obligation to pay damages.

The waiver issue

  1. On the waiver issue, which arises only if its submissions in relation to the construction issue are not accepted, Inghams submitted that the primary judge erred in finding that Mr Hannigan had not waived his right to refer the dispute to arbitration.
  • Inghams submitted that Mr Hannigan did not follow cl 23 of the Agreement in commencing the 2017 proceedings in court. Consequently, it was submitted that Mr Hannigan was now prevented from asserting any right to have the current dispute referred to arbitration for two reasons:

“First, by commencing and conducting the Earlier Proceedings in this Court, Mr Hannigan acted in a manner inconsistent with his right to have the questions in those proceedings determined in an arbitration, thereby waiving that right: Expense Reduction Analysts Group Pty Ltd v Boulder Proprietary Gold Mines Limited (1937) 59 CLR 641… the waiver now extends to the damages claim.

Secondly, if Mr Hannigan’s construction of clause 23.6 is accepted, then it was open to Inghams to resist the Earlier Proceedings on the basis that the subject matter of the case was required to be submitted to arbitration. Inghams did not do so. The conduct of the parties in conducting the Earlier Proceedings to final judgment indicates an agreement between them not to submit the dispute to arbitration. The present dispute is just a continuation of the dispute the subject of the Earlier Proceedings. It is not open to Mr Hannigan to now act inconsistently with the agreement that the dispute would be resolved in Court.”

  1. Mr Hannigan responded on the basis that the question whether Inghams lawfully terminated the Agreement on 8 August 2017 (being the subject of the 2017 proceedings) and whether he was entitled to damages for breach of the Agreement post 8 August 2017 were disparate matters. As the primary judge held at [81], the 2017 proceedings primarily concerned events leading up to and including Inghams’ invalid letter of termination dated 8 August 2017. The current proceedings, on the other hand, concerned Inghams’ failure to supply chicks after 8 August 2017.
  2. It was submitted that, as held by the primary judge at [79], “there was a sound reason” for Mr Hannigan not claiming damages for breach of the Agreement in the 2017 proceedings. The issue in the 2017 proceedings was whether Inghams’ purported termination of the Agreement was valid. Mr Hannigan’s position was that it was invalid, that he did not accept the repudiation constituted by the invalid notice of termination, and that the Agreement remained on foot. Accordingly, unlike the position that would have occurred had the repudiation been accepted and the Agreement terminated with the accrual of a right to loss of bargain damages, Mr Hannigan could not have claimed the damages the subject of his current claim at the time of the 2017 proceedings.
  3. Further, Mr Hannigan submitted that cl 23.11 of the Agreement provided that nothing in cl 23 shall prevent the making of an application to the court by any party for urgent injunctive or declaratory relief. As the primary judge held at [82], this “is exactly what Mr Hannigan sought in the 2017 proceedings”. Mr Hannigan thus submitted that there was no inconsistency between, or waiver consequent upon, his approaching the Court for declaratory relief in 2017 and subsequently seeking to have a damages claim referred to arbitration.
  4. Additionally, Mr Hannigan submitted that the 2017 proceedings did not fall within cl 23.6.1, and therefore could not have been submitted to arbitration, as they did not concern any monetary amount payable or owed under the Agreement.

Consideration – the construction issue

  1. Dispute resolution clauses may be crafted and drafted in an almost infinite variety of ways and styles. The range and diversity of such clauses may be seen in the non-exhaustive digest of dispute resolution clauses considered by Australian courts over the last thirty years, which is appended to these reasons.
  2. Dispute resolution clauses may be short form or far more elaborate, as illustrated by the cases referred to in the Appendix. They may be expressed as service of suit clauses: see, for example, HIH Casualty & General Insurance Ltd (in liq) v RJ Wallace (2006) 68 NSWLR 603; [2006] NSWSC 1150 (HIH Casualty). They may provide for arbitration: see, for example, TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia(2013) 251 CLR 533; [2013] HCA 5 (TCL Air Conditioner). They may be standard form: see, for example, Comandate Marine Corporation v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192 (Comandate). They may be bespoke: see, for example, Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 366 ALR 635 (Rinehart). They may be exclusive or non-exclusive: see, for example, FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association (1997) 41 NSWLR 117 at 120-124 (FAI). They may be asymmetric: see, for example, Continental Bank NA v Aeakos Compania Naviera SA [1994] 1 WLR 588. They may be optional: see, for example, Paharpur Cooling Towers Ltd v Paramount (WA) Ltd [2008] WASCA 110 (Paharpur); HIH Casualty. They may and often will be coupled with choice of law clauses: see, for example, Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418; [1996] HCA 39. They may be multi-tiered, providing first for a process of mediation, whether informal or formal, or informal and then formal, before providing for arbitral or judicial dispute resolution: see, for example, Electra Air Conditioning BV v Seeley International Pty Ltd [2008] FCAFC 169; Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66; (2013) 298 ALR 666.
  3. Dispute resolution clauses are just as capable of generating litigation as any other contractual clause, and the law reports are replete with cases concerned with the construction of such clauses. The cases referred to in the Appendix supply a sample.
  4. Such clauses have also spawned specialist texts and monographs (eg. D Joseph, Jurisdiction and Arbitration Agreements and their Enforcement (3rd ed, 2015, Sweet & Maxwell); A Briggs, Agreements on Jurisdiction and Choice of Law(2007, Oxford University Press) (Briggs); M Davies (ed), Jurisdiction and Forum Selection Clauses in International Maritime Law (2005, Kluwer Law International)) and journal articles too numerous to list. It is not without significance to note in this context that, in his fifth edition of The Interpretation of Contracts (2011, Sweet & Maxwell) (Lewison), Sir Kim Lewison added a chapter devoted to the interpretation of dispute resolution clauses. This chapter is expanded in the most recent, sixth, edition of Lewison, published in 2015. See also M Davies, A S Bell, P L G Brereton and M Douglas, Nygh’s Conflict of Laws in Australia (10th ed, 2019, LexisNexis Butterworths) at 7.59 – 7.78.
  5. The question raised by this appeal is purely one of construction. It is accordingly desirable to begin by identifying the principles applicable to the construction of a dispute resolution clause.

Legal principles applicable to the construction of dispute resolution clauses

  1. It has been rightly observed that “the starting point is that the clause should be construed, just as any other contract term should be construed, to seek to discover what the parties actually wanted and intended to agree to”: Briggsat 4.58; Insigma Technology Co Ltd v Alstom Technology Ltd [2009] 3 SLR 936at [30]-[33]. In Australia, of course, the search is for the parties’ intention, objectively ascertained: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52.
  2. In short, the orthodox process of construction is to be followed: Hancock Prospecting at [167]; Rinehartat [18]. Thus, a dispute resolution clause, like any other clause of a commercial contract, must be construed by reference to the language used by the parties, the circumstances known to them and the commercial purpose or objects to be secured by the contract: see Woodside at [35]; Mount Bruce at [47].
  3. Further, as the plurality observed in Woodside at [35], citing Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530; [2004] HCA 56 at [82], a commercial contract is to be construed so as to avoid it making commercial nonsense or working commercial inconvenience.
  4. Contextual considerations are also important, as the High Court’s decision in Rinehart (at [26]ff) illustrates. The context in which the dispute resolution clauses had been entered into in the two deeds under consideration in Rinehart bore heavily upon the interpretation in that case of the expression “dispute under this deed”. The plurality (at [26]) cited with approval the observations of the Full Court of the Federal Court of Australia in Hancock Prospecting(the decision under appeal in the High Court), that “[c]ontext will almost always tell one more about the objectively intended reach of such phrases than textual comparison of words of a general relational character”: see Hancock Prospecting at [193]. In his separate judgment in Rinehart, in agreement with that of the plurality on the question of construction, Edelman J observed at [83] that:

“Every clause in a contract, no less arbitration clauses, must be construed in context. No meaningful words, whether in a contract, a statute, a will, a trust, or a conversation, are ever acontextual. ”

  1. It is also axiomatic that, in the construction of a contract including an arbitration agreement or an arbitration clause in a commercial agreement, as with the interpretation of a statute, a particular contractual clause or sub-clause must not be construed in isolation but as part of the contract as a whole: Australian Broadcasting Commission v Australasian Performing Right Association Ltd(1973) 129 CLR 99 at 109; [1973] HCA 36; Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17 at [16]; Mastrobuono v Shearson Lehman Hutton Inc.514 U.S. 52 (1995). In the former case, Gibbs J (as he then was) famously said (at 109):

“It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another.”

  1. One consequence of this is that the same clause, or the same phrase in a particular clause, may not bear an identical meaning from case to case: see FAI at 120-124for a discussion of cases where identically worded jurisdiction agreements have been given different constructions.
  2. In the context of dispute resolution clauses, whether they be arbitration or exclusive jurisdiction clauses, much authority can be found in support of affording such clauses a broad and liberal construction. A particularly well known statement in this area of discourse is that of Gleeson CJ in Francis Travelto which the primary judge referred and which has been reproduced at [28] In Francis Travel, Gleeson CJ referred to the decision of the United States Supreme Court in Mitsubishi Motors Corp v Soler-Chrysler Plymouth Inc473 US 614 (1985). In that case, at 626, the Supreme Court said that “as with any other contract, the parties’ intentions control, but those intentions are generously construed as to issues of arbitrability.” (The Court’s reference to “arbitrability” was, in context, a reference to the scope of the arbitration agreement.)
  3. In Welkerat [118], Bathurst CJ made reference not only to Francis Travel but also to the similarly well known observations of Allsop J (as he then was and with whom Finn and Finkelstein JJ agreed) in Comandate at [164], namely that:

“The authorities … are clear that a liberal approach should be taken. That is not to say that all clauses are the same or that the language used is not determinative. The court should, however, construe the contract giving meaning to the words chosen by the parties and giving liberal width and flexibility to elastic and general words of the contractual submission to arbitration.”

  1. See also Global Partners Fund Limited v Babcock & Brown Limited (in liq) [2010] NSWCA 196; (2010) 79 ACSR 383 at [60](Global Partners), per Spigelman CJ who identified the rationale for the broad construction of arbitration and exclusive jurisdiction clauses in the following passage (at [67]):

“A significant purpose of an exclusive jurisdiction clause is to ensure that all disputes are determined in a coherent manner by a single jurisdiction. There is a clear commercial interest in minimising the possibility of a dispute being determined by multiple tribunals, with the consequent prospect of divergent findings. Furthermore, the parties, in advance, have determined that a particular jurisdiction is acceptable to them, both in terms of the speed and efficacy of its civil dispute resolution procedures and for the competence and skill of its judges and lawyers.”

  1. A similar rationale had been identified by French J (as he then was) in Paper Products Pty Ltd v Tomlinsons (Rochdale) Limited (1993) 43 FCR 439 at 448; [1993] FCA 346, where his Honour noted that:

“When the language of the arbitration clause in question is sufficiently elastic, then the more liberal approach of the courts to which Kirby P and others have referred can have some purchase. A wide construction of such clauses can be supported on the basis advanced by Clarke JA that it is unlikely to have been the intention of the parties to artificially divide their disputes into contractual matters which could be dealt with by an arbitrator and non-contractual matters which would fall to be dealt with in the courts. When, as here, the parties have agreed upon a restricted form of words which in their terms, and as construed in the courts, limit the reference to matters arising ex contractu, there is little room for movement.”

  • In TCL Air Conditioner at [16], French CJ and Gageler J observed that “… parties who enter into an arbitration agreement for commercial reasons ordinarily intend all aspects of the defined relationship in respect of which they have agreed to submit disputes to arbitration to be determined by the same arbitral tribunal”.
  1. In Australia, unlike other jurisdictions, the process of contractual construction of dispute resolution clauses has not been overlaid by presumptions cf the jurisdictions surveyed in G B Born, International Commercial Arbitration(2nd ed, 2014, Wolters Kluwer) at 1325-1338. Thus, in Welker at [122], Bathurst CJ, although not eschewing the liberal approach that had been adumbrated in both Francis Travel and Comandate to the construction of arbitration clauses, rejected the adoption of a presumption that had arguably commended itself to the House of Lords in Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40; [2007] 4 All ER 951. To quote from Lord Hoffmann’s speech, the presumption was that the court should, in the construction of arbitration clauses, “start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal”, and that the clause should be construed in accordance with that presumption, “unless the language makes it clear that certain questions were intended to be excluded from the arbitrator’s jurisdiction”: at [13]. The Full Court of the Federal Court in Hancock Prospecting (at [193]) treated Fiona Trust as not saying anything different in substance from Francis Travel and Comandate (the latter case being itself referred to in Fiona Trust at [31]).
  2. In Rinehart, the plurality indicated that the appeals could be resolved with the application of orthodox principles of construction, which required consideration of the context and purpose of the Deeds there under consideration, without reference to Fiona Trust: at [18]. In his separate judgment, Edelman J described as a “usual consideration of context” the fact that “reasonable persons in the position of the parties would wish to minimise the fragmentation across different tribunals of their future disputes by establishing ‘one-stop adjudication’ as far as possible”: at [83]. This may have been to treat the considerations underpinning cases such as Francis TravelComandateand Fiona Trust as not necessarily giving rise to a presumption, but rather as stating a commercially commonsensical assumption. It may be observed that Lord Hoffmann’s speech in Fiona Trust(at [13]) slides from the language of “assumption” to that of “presumption”.
  3. The proper contemporary approach was eloquently articulated in the following passage in Hancock Prospecting(at [167]) which I would endorse:

“The existence of a ‘correct general approach to problems of this kind’ does not imply some legal rule outside the orthodox process of construction; nor does it deny the necessity to construe the words of any particular agreement. But part of the assumed legal context is this correct general approach which is to give expression to the rational assumption of reasonable people by giving liberal width and flexibility where possible to elastic and general words of the contractual submission to arbitration, unless the words in their context should be read more narrowly. One aspect of this is not to approach relational prepositions with fine shades of difference in the legal character of issues, or by ingenuity in legal argument (Gleeson CJ in Francis Travel at 165); another is not to choose or be constrained by narrow metaphor when giving meaning to words of relationship, such as ‘under’ or ‘arising out of’ or ‘arising from’. None of that, however, is to say that the process is rule-based rather than concerned with the construction of the words in question. Further, there is no particular reason to limit such a sensible assumption to international commerce. There is no reason why parties in domestic arrangements (subject to contextual circumstances) would not be taken to make the very same common-sense assumption. Thus, where one has relational phrases capable of liberal width, it is a mistake to ascribe to such words a narrow meaning, unless some aspect of the constructional process, such as context, requires it.”

  1. For completeness, it may be noted that principles of construction relevant to the question of the natureof a dispute resolution clause (that is, as to whether or not it is exclusive or non-exclusive, as opposed to its scope) have been valuably identified and discussed by Giles J (as he then was) in FAI at 126-127.

Clause 23

  1. Clause 23 of the Agreement, extracted at [18]above, is what might be styled a “multi-tiered” dispute resolution clause. Clause 23.1 contemplates, by implication, that court proceedings may be commenced by a party, but proscribes the commencement of court proceedings “until it has complied with this clause 23”. Clause 23 makes provision, in subclauses 3 and 4, for the initial informal and then formal mediation of disputes. It also provides in subclause 6 for arbitration of certain types of dispute if there is a failure to resolve the dispute at formal mediation. Clause 23.11 also preserves the ability of the parties to have recourse to the court for urgent injunctive or declaratory relief.
  2. It has been observed by the doyen of private international law scholars (see Briggsat 4.55-4.56) that:

“… sometimes a clause will be encountered in which the parties appear to have agreed that a court has jurisdiction, and that disputes may or will be arbitrated. One reaction may be that this is incoherent, and that it has been brought about by the thoughtless copying of precedents. The case-law approaches the interpretation of such clauses, or combinations of clause, however, in a more constructive way. One sensible interpretation, which a court may strive to reach, is that the parties have agreed to submit to arbitration, and that the role of the court is that of supervision of the arbitration, but if neither side refers the dispute to arbitration, the jurisdiction agreement takes effect as the unchallenged provision for dispute resolution. Or to put it another way, the parties agree to the jurisdiction of the court (to be mutually exclusive or not mutually exclusive, as the case may be), but if one party exercises the right to refer the dispute to arbitration, this is thereafter the agreed means of dispute resolution, and the role of the court is supervisory if it is also the seat of the arbitration.

More difficulty arises if the clause appears to make reference to arbitration mandatory, while also providing for the jurisdiction, exclusive or otherwise, of the courts. Where this happens, incoherence is avoided by interpreting the agreement as though the reference to arbitration were optional rather than mutually mandatory. And this may be the only plausible way to make sense of such an arrangement. For reference to arbitration is never fully mandatory: if neither party elects to refer the dispute to arbitration, no third party is going to do it for them.” (footnotes omitted).

  1. One of the decisions footnoted by Professor Briggs in the above passage was that of the Supreme Court of New South Wales in HIH Casualty. The relevant clauses under consideration in that case have been reproduced in the Appendix to these reasons.
  2. Although the Agreement in the present case meets the description in the first sentence of the passage from Briggsextracted at [69] above, cl 23 of the Agreement differs significantly from the articles of the reinsurance policy that were the subject of consideration in HIH Casualty, although those articles, like cl 23, appeared to contemplate both litigation of disputes arising under this Agreement in “any competent Court in the Commonwealth of Australia” and the arbitration of “[d]isputes arising out of this Agreement or concerning its validity…”. The challenge for the Court in HIH Casualty was to ascertain whether the proceedings that had been commenced in the Supreme Court should be stayed in favour of arbitration. In the present case, the situation is the converse, namely whether a foreshadowed arbitration should be restrained in favour of litigation.
  3. Articles XVIII and XIX in the reinsurance policy in HIH Casualty differed in their language in many respects, but most conspicuously, for present purposes, in the use of the prepositional phrase “dispute arising under this Agreement” in Article XVIII, on the one hand, and the different prepositional phrase “[d]isputes arising out of this Agreement” in Article XIX, on the other hand. The Court held (at [98]) that:

“where, as here, a dispute arises under the policies, provided that the dispute is not in effect a claim for a confirmed balance [in which case it cannot be the subject of a reference to arbitration], HIH has an option to require that dispute to be litigated pursuant to Article XVIII in a competent court in the Commonwealth of Australia of its choosing or, alternatively, to submit that dispute for determination by way of arbitration.”

  1. Later in his reasons, Einstein J observed (at [116]) that:

“It is also true that construing the policy as a whole as providing HIH with an option to litigate or arbitrate also satisfies the injunction contained in Australian Broadcasting Corporation v Australasian Performing Right Association, namely to construe a contractual document as a whole with a view to insuring an harmonious reading of all the clauses.”

  1. The decision in HIH Casualty did not turn upon the difference in prepositional language between Article XVIII and XIX of the reinsurance policy. In the present case, however, Mr Braham sought to attribute much significance to the breadth of the prepositional phrase “arising out of this Agreement” in cl 23.1 by way of contrast to what he submitted was the narrower language in cl 23.6.1, viz“the Dispute concernsany monetary amount payable and/or owed by either party to the other under this Agreement” (emphasis added).
  2. It is true that the expression “arising under this agreement” has often been held to be narrower in compass than the phrase “arising out of this agreement” (see, for example, Welker at [123]per Bathurst CJ), but it has not always been narrowly construed, as the High Court’s recent decision in Rinehart  In some cases, it has been equated with the phrase “arising out of”: see Samick Lines Co Ltd v Owners of the “Antonis P Lemos” [1985] AC 711 at 727. The Full Court of the Federal Court described it in Hancock Prospecting as an “elastic relational phrase”: at [205].
  3. It must also be appreciated in the present case that cl 23.1 of the Agreement plays a very different role to that played by Article XVIII, for example, in the reinsurance policy considered in HIH Casualty. Unlike Article XVIII, cl 23.1 is not a service of suit or form of jurisdiction clause at all. Rather, it has two principal functions. First, it defines the term “Dispute” in unquestionably broad terms, and that term is then used in the balance of cl 23. Second, it proscribes the commencement of court proceedings by a party, until that party “has complied with this clause 23”. That, of course, includes cl 23.6.1 to the extent it is engaged.
  4. The broadly defined term “Dispute” is employed in cl 23.6.1. Thus, the Dispute in question, which may be the subject of arbitration, may be one arising out of the Agreement including, for example, a dispute “regarding any breach or purported breach of the Agreement”. This follows from the definition of “Dispute” in cl 23.1, and the use of that defined term in cl 23.6.1. The critical question then becomes, for the purpose of determining if the dispute in the present case was required to be submitted to arbitration, whether or not it “concerns any monetary amount payable and/or owed by either party to the other under this Agreement”. That is a question of construction and characterisation.
  • In answering that question, the principles of construction I have sought to identify and summarise at [53]-[67]above should be applied. Apart from the fact that the parties were in an ongoing commercial relationship, there was nothing of particular significance going to matters of context that was relied upon by the parties to inform the proper construction of cl 23 generally, and cl 23.6.1 in particular. The focus then necessarily must be on the language employed by the parties in the Agreement.
  1. I have already noted the broad definition of “Dispute” in cl 23.1, and the fact that that broadly defined term is carried into cl 23.6.1. The next key word to be considered in cl 23.6.1 is the word “concerns”. This is a relational term of indeterminate ambit. It, like any other connecting or prepositional phrase, will take its meaning from its context, which includes the manner in which dispute resolution clauses have been construed in contemporary case law: see Hancock Prospectingat [165]; Welker at [221]and compare, in the case of statutory interpretation, Attorney General for New South Wales v Melco Resorts & Entertainment Limited [2020] NSWCA 40 at [86].
  2. Whilst the usual caution is to be applied to consideration of the meaning of a term in other contracts or instruments, some recent examples of judicial consideration of the meaning of the term “concerns” may be given. In PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission[2011] FCAFC 52 at [197], the verb “concern”, in the context of “in so far as the proceeding concerns”, was giving the meanings “relate to; be about; affect or involve”. However, in the earlier decision of Australian Securities Commission v Lord (1991) 33 FCR 144; (1991) 105 ALR 347 at 352, the Federal Court held that the term “concerns” (in relation to the phrase “concerns the management or affairs of a body corporate”) had a narrower ambit than the phrase “relates to”.

Segment #4

Segment #5

  1. MEAGHER JA: I agree with Bell P that the applicant, Inghams, should have leave to appeal. The question in the appeal is whether Mr Hannigan’s contested claim against Inghams, for damages for breach of contract is a dispute which “concerns any monetary amount payable and/or owed by either party to the other under” the chicken growing agreement between them (cl 23.6.1). I agree also with the President’s conclusion that if that dispute is required to be referred to arbitration Mr Hannigan has not waived his right to insist that occur.
  2. As the President observes that question is “purely one of construction” and accordingly to be determined by the application of orthodox principles of construction. Those principles provide that the meaning of the terms in a commercial contract, such as here, is to be determined objectively and accordingly by reference to what a reasonable person in the circumstances of the parties would have understood those terms to mean: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [47](French CJ, Nettle and Gordon JJ). That inquiry requires attention to the language of the contract, the commercial context which it addresses and the objects which it is intended to secure: McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579; [2000] HCA 65 at [22] (Gleeson CJ). Those principles do not describe a process which is rule based, rather than concerned with the construction of the words in question in their context. Nor is that process overlaid by assumptions or presumptions which cannot be justified as informing what a reasonable person would have understood the words to mean in their commercial context: Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; [2017] FCAFC 170 at [167] (Allsop CJ, Besanko and O’Callaghan JJ).
  3. For the reasons which follow it is my view that Mr Hannigan’s claim for breach of Inghams’ general obligation to supply chickens (cl 3.1) is not a dispute within cl 23.6.1 and accordingly not one which must, in the absence of any ad hoc agreement, be submitted to arbitration. The primary judge erred in concluding otherwise: Inghams Enterprises Pty Ltd v Francis Gregory Hannigan [2019] NSWSC 1186.

The chicken growing agreement

  1. The relevant terms of this agreement are extracted by the President at [7]-[18]. The “general obligations” of the parties (cll 3 and 4) describe their respective obligations in relation to the growing of the chickens. On Inghams’ part those obligations fundamentally include to supply one day old chicks, feed and the technical services required for Mr Hannigan to perform his primary obligation, which is to “raise” those chicks in his shed facilities in accordance with a detailed Manual supplied by Inghams. There follow a provision making clear that at all times the chickens remain the property of Inghams (cl 6), and provisions governing the collection of the chickens for processing (cl 7) and Inghams’ rights of access to the grower’s premises (cl 8).
  2. Clauses 9 to 13 address the payment obligations of the parties, principally Inghams’ obligation to make ongoing payments to the grower for the term of the agreement, initially a period of five years. In essence Inghams agrees, in relation to each batch of chickens raised and collected, to pay the grower a Fee calculated on a per chicken basis. That Fee is to be adjusted annually, following negotiations and after taking account of defined “productivity criteria”. In addition the grower may be entitled to an additional payment calculated in accordance with a “Pool Payment System”, which takes account of the productivity of the grower measured against the productivity of a pool of growers (cll 9.1, 10.1 and Annexures 1 and 2).
  3. There follow provisions which qualify the ordinary position that the grower receives payments determined in accordance with Annexures 1 and 2. First, where the payment to the grower in respect of a batch is less than 85 per cent of the Fee as a consequence of a single event determined by Inghams to be a “disaster”, a different regime applies for the determination of the Fee. It does so depending on whether the disaster has been caused by the action of Inghams, neither of the parties or is attributable partially to each of them (cl 11).
  4. Secondly, Inghams is entitled to deduct from any payment due to the grower financial losses suffered by it (limited to the cost of all goods supplied to the grower and excluding all consequential and indirect losses) as a result of the grower’s negligence in raising the chickens (cl 12.1). Inghams may also “charge to and recover from the grower” losses and expenses incurred in collecting and raising any chickens to which cl 12.1 losses are referrable (cl 12.3). Thirdly, in the event that the compulsory slaughter of chickens is required by any statutory authority Inghams is required to pay to the grower part of any financial compensation received by it in respect of that destruction (that part to be calculated in accordance with a specified formula) (cl 13).
  5. Finally, in addition to Annexures 1 and 2 providing for variations and adjustments to the annual Fee, cl 15.3.3 provides that in the event that the Manual with which the grower must comply (cl 4.2) is amended, the parties agree to “renegotiate the Fee having regard to the effect of [any] relevant amendments”.

The chicken supply dispute

  1. Mr Hannigan’s formulation and notification of the relevant dispute is extracted in the President’s judgment at [24]. It is constituted by Mr Hannigan’s contested claim to damages for breach of Inghams’ general obligation to supply, during the period 8 August 2017 to 17 June 2019, batches of chicks in accordance with the terms of the agreement. The ordinary measure of damages for loss sustained by such a breach is the amount required to place Mr Hannigan in the same position in money terms as he would have been in had the contract been performed: Robinson v Harman (1848) 1 Exch 850; 154 ER 363 at 855;365 (Parke B). Applying that measure, the matters to be taken into account will ordinarily include the payments to which Mr Hannigan would have been entitled, on the hypothesis that chicks had been supplied, raised and collected (in whole or in part) during the relevant period, as well as the variable and other costs which would have been, but were not in fact, incurred by him in so doing.

The dispute resolution clause

  1. The relevant provisions of the dispute resolution clause are extracted by the President at [18] It is convenient nevertheless to set out cll 23.1, 23.6, 23.8 and 23.11 in these reasons:

23.1 A party must not commence court proceedings in respect of a dispute arising out of this Agreement (“Dispute”) (including without limitation any Dispute regarding any breach or purported breach of this Agreement, the interpretation of any of its provisions, any matters concerning a party’s performance or observance of its obligations under this Agreement, or the termination or the right of a party to terminate this Agreement) until it has complied with this clause 23.

23.6 If:

23.6.1   the Dispute concerns any monetary amount payable and/or owed by either party to the other under this Agreement, including without limitation matters relating to determination, adjustment or renegotiation of the Fee under Annexure 1 or under clauses 9.4, 10, 11, 12, 13 and 15.3.3; and

23.6.2   the parties fail to resolve the Dispute in accordance with Clause 23.4 within twenty eight (28) days of the appointment of the mediator

then the parties must (unless otherwise agreed) submit the Dispute to arbitration using an external arbitrator (who must not be the same person as the mediator) agreed by the parties or, in the absence of agreement, appointed by the Institute Chairman.

23.8 The parties must use their reasonable endeavours to enable the arbitrator to make a determination as quickly as possible and the arbitrator must (unless otherwise agreed in writing) make that determination within 2 (two) months of accepting the appointment. For that purpose the parties agree to co-operate with the arbitrator and each other in fixing a timetable and taking such steps as are required under that timetable or as may otherwise be reasonably directed by the arbitrator in order to enable the arbitrator to complete the arbitration with[in] that period.

23.11 Nothing in this Clause 23 shall prevent the making of an application to the court by any party to the dispute for urgent injunctive or declaratory relief.

  1. Clause 23.1 prohibits each party from commencing court proceedings in respect of the universe of disputes “arising out of” their agreement and that prohibition applies until the relevant party “has complied with this clause 23”. There is no reason to construe this provision narrowly. The rational assumption of a reasonable person in the position of the parties would be that the provisions of this clause should apply to all of the disputes relating to their agreement. Approaching the construction of this overriding provision by reference to such an assumption is merely an application of the objective theory of contract.
  2. This clause also recognises the breadth of the types of dispute which may arise and, particularly, that they may arise before or after the time for performance or observance of an obligation, no distinction in that context being drawn between what the agreement describes as “general” obligations and those providing for the payment of money.
  3. The matters which must be complied with respect to all disputes “arising out of” the agreement are that any dispute be notified to the other party (cl 23.2), that the parties use “best endeavours” to resolve that dispute (cl 23.3), and that if the dispute cannot be resolved it must thereafter be mediated (cll 23.4, 23.5).

Clause 23.6.1

  1. Clause 23.6.1 provides that a subset of the universe of disputes arising out of the agreement must then be referred to arbitration. The necessary characteristic of disputes in that subset is that they “concern” “any monetary amount payable and/or owed by either party to the other under this Agreement”. This language does not suggest this characteristic has to be the defining or only characteristic which those disputes bear: Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31; [2015] HCA 43 at [187](Nettle and Gordon JJ).
  2. That composite description requires that subject matter be “any” “monetary amount” which is “payable and/or owed” by one party to the other where the attribute of being “payable and/or owed” is qualified by the words “under this Agreement”. There must then be a sufficient relationship between the dispute and that subject matter such that the former “concerns” the latter.
  3. What is immediately apparent is that cl 23.6.1 does not purport to refer to arbitration any dispute “arising out of this Agreement” or, for that matter, any dispute “under this agreement”. Here, subject to the qualification introduced by cl 23.11 in relation to “urgent injunctive or declaratory relief”, the parties clearly intended that only a subset of the disputes within the universe of disputes “arising out of” their agreement must be resolved by arbitration: cf Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd(1996) 39 NSWLR 160 at 165 (Gleeson CJ); Hancock Prospecting Pty Ltd v Rinehart at [167] (Allsop CJ, Besanko and O’Callaghan JJ); and Fiona Trust Holding Corporation v Privalov [2007] UKHL 40; [2007] 4 All ER 951 at [13] (Lord Hoffman).
  4. Furthermore, whilst cl 23.6.1 requires attention to the sense in which the expression “under this Agreement” is used, it does not do so in relation to its use in a clause referring all disputes answering that description to arbitration. Accordingly whether there is any distinction in that context between disputes “arising under” and disputes “arising out of” an agreement is a controversy which does not arise in this case: see Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 93 ALJR 582 at [18]-[25](Kiefel CJ, Gageler, Nettle and Gordon JJ).
  5. The question as to the meaning of the expression “under this Agreement” used in relation to an amount “payable and/or owed” remains. As Lindgren J observed in Energy Resources of Australia Ltd v Commissioner of Taxation (2003) 52 ATR 120 at [37]the word “under” admits of “degrees of precision and exactness on the one hand, and of looseness and inexactness on the other” making it “necessary to have regard to the context in order to identify the meaning of the word intended in a particular case.” See more generally The Queen v Khazal (2012) 246 CLR 601; [2012] HCA 26 at [31] (French CJ); and Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 at [102] (Leeming JA) (There the guaranteed money in question was defined to mean “all amounts (including damages) that are payable, owing but not payable or that otherwise remain unpaid … on any account at any time under or in connection with” the relevant agreement).

“monetary amount payable”

  1. The expression “monetary amount payable” describes an amount of money that is or may become liable to be paid, and accordingly “payable”. Thus it can refer to an amount that will from time to time fall due for payment, as well as to an amount due for payment. These different senses in which the word “payable” may be used, are discussed by Hoffman J (as his Lordship then was) in Tea Trade Properties Ltd v CIN Properties Ltd (1990) 1 EGLR 155 at 158,in a passage cited in K Lewison, The Interpretation of Contracts (6th Ed, 2015, Sweet & Maxwell) at p 367. Thus an amount that will from time to time fall due as a fee, which is the subject of negotiation or variation or adjustment, will at that time nevertheless be a “monetary amount payable”. That expression is to be contrasted with the expression “monetary amount owed” which describes an amount liable to be paid, due for payment and unpaid. The use of the joining words “and/or” recognises that the money amounts which these expressions describe may overlap.

“under this Agreement”

  1. The description of such amounts as “payable and/or owed” “under” the agreement directs attention to the source of the underlying payment obligation and whether the agreement governs or controls its existence, as the following three cases demonstrate. In Chan v Cresdon Pty Ltd (1989) 168 CLR 242; [1989] HCA 63 a lease of land contained a provision by which a person, who was a party to the lease, guaranteed the performance by the lessee of its obligations “under this lease”. The majority (Mason CJ, Brennan, Deane and McHugh JJ) considered that the word “under” referred “to an obligation created by, in accordance with, pursuant to or under the authority of, the lease. The obligation which arose under the common law tenancy at will [did] not answer this description” (at 249).
  2. The appeal in Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520; [2000] HCA 35 concerned the “time of disposal” of assets for the purpose of determining the year of income in which a net capital gain accrued. Where the “asset was acquired or disposed of under a contract” Income Tax Assessment Act 1936 (Cth), s 160U(3)deemed the time of disposal to be “the time of the making of the contract” (at [33], [34], [37]). The plurality (Gleeson CJ, Gaudron, McHugh and Hayne JJ) held (at [42]) that “the words ‘under a contract’, in s 160U(3), direct attention to the source of the obligation which was performed by the transfer of assets which constituted the relevant disposal”. In that case an agreement of 31 May 1991 “was the source of the obligation which [Sara Lee] discharged” by performance of its obligation to transfer on 30 August 1991.
  3. Finally, in Queensland Premier Mines Pty Ltd v French (2007) 235 CLR 81; [2007] HCA 53 the question was whether the registration of a transfer of two Torrens title mortgages vested in the transferee a right to recover moneys owed under a loan agreement which was separate from, but secured by, one of the mortgages. Land Title Act 1994(Qld), s 62 defined the “rights” transferred as including the right “to recover a debt or enforce a liability under the mortgage”. The Court (Kiefel J, Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ agreeing) held that the right to recover moneys under the loan agreement was not assigned, observing at [55] that this conclusion was confirmed by the words “under the mortgage” in s 62(4):

The word ‘under’ with respect to an obligation ‘under this lease’, has been held to refer to an obligation created by, in accordance with, pursuant to, or under the authority of the lease. Likewise the words ‘under a contract’ in a statute may direct attention to the source of the obligation in question; and a decision ‘under an enactment’ to the statute to which the decision sought to be reviewed owes, in an immediate sense, its existence. [citations omitted]

  1. Returning to the language in the growers’ agreement, the words “payable and/or owed” when used in relation to “a monetary amount” describe an obligation owed by one party to the other and the use of the phrase “under this Agreement” with respect to that obligation identifies their contract as its source. That is the natural and ordinary meaning of this language and there is nothing in the text or context which suggests that a reasonable person in the circumstances of the parties would have understood it to mean otherwise.

“including without limitation”

  1. The inclusion in cl 23.6.1 of the list of “matters relating to [the] determination, adjustment or renegotiation of the Fee under Annexure 1” is wholly consistent with the subject matter of the reference to arbitration being disputes concerning payment obligations under the agreement. The words introducing that list – “including without limitation” – convey that the listed matters are not intended either to restrict the matters which would otherwise fall within the language of the preceding description or to narrow the construction of that language by reason of any genus of the matters listed. As to that being the function of such an inclusive “definition” see Corporate Affairs Commission (SA) v Australian Central Credit Union(1985) 157 CLR 201 at 206-207 (Mason ACJ, Wilson, Deane and Dawson JJ); [1985] HCA 64.

“Dispute concerns”

  1. The purpose for the parties’ agreement that disputes which “concern” payment obligations should be referred to arbitration emerges in cl 23.8. By that provision the parties agree to “use their reasonable endeavours to enable the arbitrator to make a determination [of such disputes] as quickly as possible”. Their commercial reasons for doing so, particularly from the perspective of the grower, are obvious. In argument this Court was informed that a batch of chickens takes between 35 and 45 days to be raised and collected, thus allowing for the delivery of batches every two months or so. In Mr Hannigan’s case that meant that up to six batches a year might be raised, with the potential for over 200,000 chickens in each of those batches. In such a short cycle and high turnover business, an expeditious dispute resolution procedure directed to payment obligations under the agreement seeks to ensure continuity of cash flow, from the perspective of the grower, and ongoing certainty as to the costs of production, from the perspective of Inghams.
  2. It follows that the connecting word “concerns” should be given sufficient “width and flexibility” to ensure that any dispute which relates to the negotiation, adjustment, determination or performance of a payment obligation “under this Agreement” is submitted to arbitration. Doing so, a dispute will “concern” a payment obligation under the agreement if the dispute is about such an obligation, which will be the case where there is a claim to payment or for damages for breach of such an obligation; if the dispute affects or involves or relates to such a payment obligation which would be the case where there is an issue concerning the negotiation, adjustment or determination of any fee to be paid; or if there is a dispute as to an entitlement of a party to deduct any sum from a payment which it is otherwise liable to make. These examples are obviously not exhaustive. However they recognise that the relational word “concerns” will be satisfied if a dispute relates to or is about or affects or involves a money payment obligation under the agreement.

Is the chicken supply dispute one within cl 23.6.1?

  1. The subject matter of the notified dispute is a claim for unliquidated damages for breach of Inghams’ obligation under cl 3.1. It is not a claim to or about an amount “payable” or “owed” by Inghams to Mr Hannigan under an express or implied term of their agreement. Nor is it a dispute which affects or relates to the negotiation, adjustment or determination of any amount “payable” or “owed” under such a term. The argument that Mr Hannigan’s claim concerns a monetary amount payable under the agreement proceeds as follows. First, it is said that a claim to “compensatory damages” will result in a judgment or award for a monetary amount which, when determined, will be “payable”. For the purposes of argument, that much may be accepted.
  2. The second part of the argument addresses the qualification that the obligation which makes that amount “payable” is created by, or in accordance with the parties’ agreement. This part of the argument is put in two ways. First, it is said that the amount of damages once awarded is payable “under” the agreement because the measure of damages includes as an element an amount which would have been payable had the agreement been performed. To that extent the quantum of those damages is said to be “governed or controlled” by the agreement. It is not however contended that the source of the underlying obligation to pay damages is the agreement, or that the contract says anything about the amount recoverable and how it is to be calculated.
  3. The second way in which the argument is put is captured in the judgment of the President at [88]-[90]. It is that damages for breach of contract may be treated or described as an amount payable under a “secondary obligation” of the agreement following the breach of a primary obligation. In support of that analysis reference is made to the statements of Lord Diplock in Moschi v Lep Air Services Ltd [1973] AC 331 at 350and Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at 848-849, and the statement of Kiefel CJ, Bell and Keane JJ in Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 93 ALJR 1164 at [12] that:

the right to damages for loss of bargain that arises in such a case [a termination for wrongful dismissal] is, in this respect, no less a creature of the contract than the right to recover sums that become due before its termination.

  1. However, none of those statements suggest that the obligation to pay damages for breach of contract is created by or arises under the contract. On the contrary, Lord Diplock’s analysis in Lep Air Services and Photo Production acknowledges that the so-called “secondary obligation” arises “by operation of law” or by “implication of the common law”, which is the same thing. The description of the right to loss of bargain damages following a termination for wrongful dismissal as a “creature of the contract” does not take this analysis any further.
  2. The orthodox and uncontroversial position remains as stated by Nettle, Gordon and Edelman JJ in Mann v Paterson Constructions at [195]:

Traditionally, the remedial obligation to pay damages for breach of contract has been understood as an obligation “arising by operation of law”. Whether or not there is any role for the objective or manifested intention of the parties in ascertaining boundaries of liability in an award of damages, the proposition that the award of damages is somehow a product of the agreement of the parties as an alternative to performance is not easily reconciled with several established notions at law and in equity, including the normative principles which govern the quantification of damages and the grant of specific performance and injunctions on the basis that damages are an “inadequate” remedy. The parties contract for performance, not damages. In short, as Windeyer J said, “[i]t is … a faulty analysis of legal obligations to say that the law treats a promisor as having a right to elect either to perform his promise or to pay damages. Rather … the promisee has ‘a legal right to the performance of the contract’.” (citations omitted)

  1. It is equally wrong, as a matter of legal theory, to suggest that the assessment of unliquidated damages for breach of contract is “governed or controlled by” the contract simply because the measure of damages at common law takes account of benefits which would have been received as a result of performance. The position is as stated by Gageler J in Mann v Paterson Constructions at [83]:

Contracting parties are, of course, at liberty to determine by contract the “secondary” obligations, which are to arise in the event of breach or termination of the “primary” obligations they have chosen to bind them. Even where the parties have not so determined, it may for some purposes be appropriate to describe obligations that the common law imposes to pay damages for breach of contract as “secondary” obligations which, in the event of termination by acceptance of a repudiation, are “substituted” for the primary obligations. However, it would be artificial as a matter of commercial practice and wrong as a matter of legal theory to conceive of contracting parties who have not addressed the consequences of termination in the express or implied terms of their contract as having contracted to limit themselves to the contractual remedy of damages in that event.

  1. The distinction between monetary amounts which are payable or owed “under a contract” and remedies which arise by operation of law is a recognised and meaningful one. Whereas ‘liquidated damages’ are recoverable in satisfaction of a right of recovery created by the contract itself and accruing by reason of breach, unliquidated damages for breach of contract are compensation assessed by the court in accordance with common law principles for loss occasioned by breach: Rotheberger Australia Pty Ltd v Poulsen [2003] NSWSC 788 at [27](Barrett J); Galafassi v Kelly (2014) 87 NSWLR 119 at [178] (Gleeson JA, Bathurst CJ and Ward JA agreeing). That distinction has been endorsed as one which it is “essential” to maintain: Galafassi at [177].
  2. It follows that the notified dispute does not concern a monetary amount payable or owed by Inghams to Mr Hannigan under their agreement and accordingly it is not a dispute referred to arbitration by cl 23.6.1.

The reasoning of the primary judge

  1. It remains necessary to consider three aspects of the primary judge’s reasoning in support of his contrary conclusion that cl 23.6.1 includes a contested claim to unliquidated damages for breach of a non-money payment obligation under the agreement.
  2. The first is his Honour’s conclusion at [62] that the inclusion of the reference to cl 12 in the list in cl 23.6.1 is inconsistent with the description of the relevant subject matter of the clause as limited to claims to enforce payment obligations arising under the agreement because cl 12 describes no more than a claim for damages. As the President ventures at [32] the significance of the argument accepted by the primary judge may lie in the fact that no “genus of dispute could be derived from the specific clauses referred to in cl 23.6.1 to suggest what did and did not fall within the scope of the arbitration agreement”. However that observation does not take account of the words “without limitation” which indicate that no constructional inference regarding the meaning of the descriptive definition should be drawn from any shared features or lack of shared features of the matters included in the list.
  3. More significantly, the primary judge’s analysis gives a narrower meaning to the word “concerns” than is consistent with the purpose of cl 23.6 and overlooks the application of cl 12.1 which permits Inghams to deduct losses to be borne by the grower “from any Payments due to the Grower” for the relevant batch. Thus any dispute as to the fact or amount of such loss necessarily “concerns” a “monetary amount” “payable” “under” the agreement because of the entitlement by cl 12.1 of Inghams to deduct any amount to which it is entitled from that “monetary amount”.
  4. The second is that the primary judge considered at [64] that on the construction urged by Inghams, cl 23.6.1 would have the consequence that a claim in debt for non-payment of a fee due under cl 9.1 would be referred to arbitration whereas a claim to damages for the same breach would not. His Honour described that inconsistency in outcome as “hardly [to] have been intended by the contracting parties”. In this respect the primary judge’s analysis again depends on a narrower construction of the connecting term “concerns” than I consider it should be given, as appears above, particularly at [142]-[143]. If the notified dispute involves a claim for damages for breach of cl 9.1, that dispute bears a sufficient relationship to a “monetary amount payable” under the agreement because the claim is for breach of such an obligation. Accordingly, the dispute is about or involves that monetary obligation, and in that sense is a dispute which “concerns” it. Therefore no inconsistency in outcome arises.
  5. Thirdly, the primary judge at [65] considered that because one integer in the assessment of Mr Hannigan’s damages was the amount which would have been received under cl 9.1 had the supply obligation been performed, the relevant dispute could be said to “concern” “monetary amounts” payable under the agreement. The difficulty for this argument is identified above at [145]. Whilst the assessment of damages may involve attention to amounts which would have been paid or payable had the contract been performed, the dispute in this respect does not relate to or involve a monetary amount that is or may become liable to be paid so that it answers the description of an amount “payable” under the agreement. Rather that dispute concerns an amount which might have been payable in a hypothetical counterfactual adopted for the purpose of assessing damages under the common law.

Conclusion

  1. For these reasons I would make the following orders:
  2. Grant leave to appeal.
  3. Allow the appeal.
  4. Set aside orders (1) and (3) made by Slattery J on 16 September 2019.
  5. Declare that the dispute the subject of the respondent’s Notice of Dispute dated 29 May 2019 is not required to be submitted to arbitration pursuant to cl 23.6 of the Queensland Broiler Chicken Growing Agreement between the parties dated 22 September 2015.
  6. The respondent pay the appellant’s costs of the proceedings at first instance and on appeal.
  7. GLEESON JA: I agree with the orders proposed by Meagher JA and with his Honour’s reasons.

**********

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Decision last updated: 04 May 2020

 

Punch Partnerships (PTL) Ltd & Anor v The Highwayman Hotel (Kidlington) Ltd [2020] EWHC 714 (Ch) (24 March 2020)

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Neutral Citation Number: [2020] EWHC 714 (Ch)
Claim No BL-2019-000810

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY DIVISION
IN THE MATTER OF THE ARBITRATION ACT 1996
AND IN THE MATTER OF AN ARBITRATION CLAIM

Claim No BL-2019-000810
24 March 2020

B e f o r e :
Mr M H Rosen QC
(sitting as a Judge of the Chancery Division)
BETWEEN:

____________________

(1) PUNCH PARTNERSHIPS (PTL) LIMITED
(2) STAR PUBS & BARS LIMITED Claimants
– and –
THE HIGHWAYMAN HOTEL (KIDLINGTON) LIMITED Defendant
-and-
THE OFFICE OF THE PUBS CODE ADJUDICATOR Intervenor

____________________

Judgmentf
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

Mr M H Rosen QC

(1) Introduction

    1. The Highwayman Hotel in Kidlington, Oxford (“the Pub”) is currently let to the Defendant Tenant by the First Claimant (“Punch”) under a “tied pub” form of tenancy, at below market rent but requiring the Tenant to purchase alcohol sold at the Pub from the landlord or its nominee at above market prices, due to expire on 26 April 2022.
    2. Punch is a subsidiary of the Second Claimant (“Star”) which operates the pub estate business of Heineken UK Limited, the freehold owner of approximately 2,500 out of some 12,000 tied pubs in the UK. In this judgment I will call the Claimants together “the Landlords”, although sometimes for simplicity that phrase is used to refer to only one of them.
    3. By a claim form dated 25 April 2019, the Landlords seek to challenge an award dated 29 March 2019 (“the Award”) made by Ms Fiona Dickie, the Deputy Pubs Code Adjudicator (“DPCA”) in a statutory arbitration commenced by the Tenant under Part 4 of the Small Business, Enterprise and Employment Act 2015 (“the 2015 Act”) and the Pubs Code etc Regulations 2016 (“the Pubs Code”).
    4. The DPCA was and is a member of the Office (“OPCA”) of the Pubs Code Adjudicator (“the PCA”) established by section 41 of the 2015 Act and empowered under schedule 1 to do anything calculated to facilitate or to be otherwise conducive to her functions, which are regulatory and dispute-resolving under the 2015 Act. (Where I refer in this judgment to “OPCA”, I intend to include the PCA and the DPCA.)
    5. In the Award, the DPCA held that the terms of a so-called “market rent only” or “MRO” lease offered to the Tenant to replace the existing tenancy agreement in respect of the Pub, were unreasonable because the proposed lease expired on the same date as the tied tenancy that it was to replace, and ordered the Landlords to offer a new MRO lease for a minimum period of five years from the date of grant (and thus at least two years longer than the lease which they proposed).
    6. By their claim form, the Landlords applied to have the Award set aside or varied on three grounds under the Arbitration Act 1996 (“the 1996 Act”), which I would summarise as follows:

(a) that in finding that the MRO lease proposed was unreasonable due to the length of its term, the DPCA

(i) erred in law so that the Award should be set aside pursuant to section 69 of the 1996 Act, and

(ii) unlawfully relied upon information received in her capacity as regulator under the 2015 Act and the Pubs Code and breached her duty to act fairly and impartially and/or exceeded her powers, so that the Award should be set aside under section 68; and

(b) in ordering the Claimants to offer an MRO lease of a particular length, the DPCA exercised a power that she did not have under the 2015 Act and/or the Pubs Code and so exceeded her powers and/or erred in law such that the Award should be set aside under sections 68 and/or 69 of the 1996 Act.

    1. By an order of Zacaroli J dated 9 July 2019, the Landlords’ challenges, including their application for leave to appeal the award under section 69 of the 1996 Act, were directed to be considered at an oral hearing.
    2. At that hearing, listed to take place on 18 December 2019, on what the Claimants then told me, I granted them leave under section 69(3) and adjourned the matter for the OPCA to be represented, which it was at the adjourned hearing on 26 February 2020.
    3. The Claimant Landlords were represented by Catherine Callaghan QC and Peter Stevenson, instructed by DLA Piper Scotland LLP, and adduced two witness statements of Hazel Moffat dated 25 April and 28 November 2019 in support of their challenges.
    4. The Tenant did not serve any evidence or argument in these proceedings nor attend the hearing, but in correspondence with the PCA it identified an objection to the Claimants’ challenges, namely that pursuant to Article 34 of the Rules of the Chartered Institute of Arbitrators (“ChIArb”) which governed the arbitration, the parties waived any right to appeal.
    5. There were also before the Court written “Arbitrator’s Observations” served by the Government Legal Department on behalf of the DPCA on 1 October 2019, a letter of 9 December 2019 in response to Ms Moffat’s second witness statement, and submissions on law only both written and oral from Adam Heppinstall, counsel on behalf of the OPCA.

(2) The Statutory Regime

    1. The key provisions of the 2015 Act for the purpose of these proceedings are in section 43, subsection (1) of which states that the Pubs Code must require pub-owning businesses, among other things, to offer their tied pub tenants ‘a market rent only option’ in specified circumstances. A “market rent only option” is defined in subsection (2) as an option for the tied tenant to occupy the tied pub under a tenancy which is ‘MRO-compliant‘ and to pay an agreed rent or (failing such agreement) a market rent.
    2. Section 43(4) provides that a lease will be MRO-compliant if, among other things, it “contains such terms and conditions as may be required by virtue of subsection (5)(a)” and “does not contain any unreasonable terms or conditions“; and subsection (5) states that the Pubs Code may specify descriptions of terms and conditions (a) which are required to be contained in a tenancy or licence for it to be MRO-compliant; (b) which are to be regarded as reasonable or unreasonable for the purposes of subsection (4).
    3. By section 44(1) of the 2015 Act, the powers to determine the procedures to be followed by pub-owning businesses (“POBs”) and their tenants in respect of MRO offers, known as “the MRO procedure’ and the power to confer “functions on the [Pubs Code] Adjudicator in connection with that procedure” were delegated to the Secretary of State
    4. Sections 44 and 45 anticipated two separate procedures for determining disputes between POBs and their tied tenants, namely

(a) where the parties could not agree the rent payable under a proposed MRO lease, section 44(2) entitled the Secretary of State to impose an independent assessor to determine the market rent; and(b) as regards other disputes relating to the offer of an MRO lease, section 45(2) empowered the Secretary of State to confer functions on the Adjudicator to resolve such disputes and, in particular, disputes as to “whether … a proposed tenancy or licence is MRO-compliant“.

    1. The 2015 Act also provided for the PCA to have regulatory functions as set out in sections 53 to 61, including the power to carry out investigations into whether a POB has failed to comply with the Pubs Code, to make recommendations, require information to be published or impose financial penalties on the POB and to give advice or publish guidance on any matter relating to the Pubs Code.
    2. The Pubs Code (issued by the Secretary of State under section 42(1) of the 2015 Act on 20 July 2016) provides for MRO-compliant lease offers as follows:

(a) Regulation 29 requires the POB, upon receipt of a valid MRO notice, to send the tenant a “full response” including a proposed tenancy which is “MRO-compliant“;(b) Regulation 30(2) specifies that a proposed tenancy will only be MRO-compliant if “its term is for a period which is at least as long as the remaining term of the existing tenancy”; and

(c) Regulation 31 specifies that the terms of a proposed tenancy shall be regarded as unreasonable if they (i) include a break clause exercisable only by the landlord; (ii) impose a service tie in respect of insurance (other than buildings insurance); or (iii) include terms which are not common in non-tied tenancies;

(d) Regulation 58(3) provides that, in the event that the tenant or pub-owning business refers the dispute to arbitration, that arbitration must be conducted in accordance with “(a) the rules regarding arbitrations issued from time to time by the Chartered Institute of Arbitrators; or (b) the rules of another dispute resolution body nominated by the arbitrator.”

    1. In the event of a dispute concerning whether the proposed tenancy is MRO-compliant:

(a) under Regulation 32 the tenant or the POB may refer the matter to the Adjudicator (who, pursuant to Regulation 58(2), must either arbitrate the dispute or appoint another person to do so);(b) under Regulation 33, if the Adjudicator rules that the POB “must provide a revised response to the tied pub tenant”, such “revised response” must be provided within 21 days of the ruling;

(c) under Regulation 34, the parties have a 56 day negotiation period, from the provision of the full response under Regulation 29 or the revised response under Regulation 33, in which to agree terms; and

(d) under Regulation 35, if an MRO tenancy is proposed during the negotiation period which the tenant considers is not MRO-compliant, it may again refer the matter to arbitration.

(3) Factual background

    1. The Tenant triggered the MRO procedure under the 2015 Act and the Pubs Code by serving an MRO notice on PTL on 9 November 2016, and the steps then leading to the arbitration and the Award were in summary:

(a) on 6 December 2016, Punch sent its “full response” to the Tenant pursuant to Regulation 29(3) of the Pubs Code, including a proposed MRO tenancy to replace the existing tied tenancy, for a period matching the remaining term of the existing tenancy;(b) on 3 January 2017, the Tenant (dissatisfied with PTL’s full response) referred the dispute to arbitration alleging that the terms of the proposed tenancy were unreasonable on many grounds but without objecting to the proposed period;

(c) in an award made on 5 January 2018, the DPCA as arbitrator (as from November 2017) upheld three of those objections, holding that terms were unreasonable which (i) required the payment of a deposit of six months’ rent; and (ii) the payment of insurance annually in advance and which (iii) triggered repair obligations;

(d) on 24 January 2018 Punch submitted a “revised response” seeking to address those points concerns;

(e) on 7 February 2018, the Tenant (rejecting the revised response) made a second referral to the PCA for arbitration in which it contended that the period of the proposed tenancy was unreasonable; and

(f) on 26 April 2018, the parties were notified that the DPCA was to act as arbitrator in respect of the second reference.

    1. On 7 December 2018, while that (second) arbitration was on-going, the DPCA wrote to Star in her capacity as regulator, stating that the OPCA would shortly be issuing a further chapter of its regulatory compliance handbook which would deal with MRO proposals and requesting that Star provide information on its normal practice in respect of lease lengths.
    2. On 21 January 2019, the information so requested was provided to the DPCA (as I have said, as regulator) and included the statement that:

“… it is Star Policy to offer to the Tied Pub Tenant (TPT) an agreement which is as long as the remaining term of the existing tenancy, as stipulated in the Pubs Code or a term of 10 years whichever is longerthere may be instances where an alternative duration may be offered, but this is not common practice”.

    1. On 30 January 2019, this information (which I will call “Star’s 10-year Policy”) was forwarded by the DPCA to the Tenant in the arbitration and Star was required by the DPCA to state whether it had made this information known to the Tenant and to explain why a 10-year lease had not been offered.
    2. On 1 February 2019, Star responded to the DPCA’s letter in the context and for the purpose of the arbitration, explaining why it had not disclosed its policy to the Tenant and confirming that it regarded the term offered as appropriate and reasonable.
    3. On 4 February 2019, the Landlords’ solicitors wrote to the DPCA objecting to this information being shared with the Tenant, stating that it had been provided in the legitimate expectation that it would be utilised solely in the OPCA’s regulatory capacity.
    4. On 12 March 2019, the OPCA wrote to the Landlords’ solicitors stating generally that information from a POB brought to the OPCA’s attention in a regulatory capacity would be shared, where relevant, with the other party in an arbitration involving that POB and that“… When acting as arbitrator and managing an arbitration, the PCA and Deputy PCA cannot ‘un-know’ information they have received as the regulator.”

(4) The Award

    1. On 29 March 2019, the DPCA published her award in the second reference, now under challenge. Appendix 2 to the Award confirmed that the applicable rules for the conduct of the arbitration were the current ChIArb Rules and paragraph 12 of the Award acknowledged that (a) the Tenant had not raised any objection to the length of the proposed term in the first reference; and (b) the period of the proposed tenancy was as long as the remaining term of the existing tenancy as required by Regulation 30(2) of the Pubs Code.
    2. The reasons stated in the Award for accepting the Tenant’s submission that such a period was unreasonable, were as follows:

“41. When I was on the point of completing my award at the end of January 2019, as regulator I came into possession of information regarding the Respondents’ policy in respect of the lease length that it would offer in its proposed MRO tenancies…

53. Given that the length of the term of the proposed lease must not be unreasonable, it is for the Respondents to show what their reasons were for offering the lease length that they did and that they were reasonable ones. They have not shown their reasons…

“54. Having failed to put forward a reason for having chosen not to apply its usual policy to lease length, I find that the Respondents had no good reason for its choice, and that the lease length proposed is unreasonable and not compliant.”

    1. The Award then held that the DPCA had the power to order Punch to offer a new lease with a minimum term of 5 years:

“61. In submissions dated 4 June 2018 [the Landlords] argued that, properly interpreted, the legislation [the 2015 Act and the Pubs Code] did not empower me to order the precise terms of the revised response…[and] my powers are limited to ordering the service of a revised response, but not to determining what that revised response must contain. However, I find no support for such a construction in the legislation pursuant to which I derive my powers, the drafting of regulation 33(2) being broad.

“62. I take the view that the reference to my powers in that regulation is not exhaustive. Its language is permissive, in that it does not restrict me in the scope of any ruling I may make as to the terms of the revised proposal. I must arbitrate the dispute, and that means that I should ensure that [the Tenant] obtains a compliant MRO proposal without the need to refer for further arbitration on the terms of the MRO lease. History indicates to me that the parties are unable to negotiate to an effective agreement, and therefore in this case I have determined that I should order the compliant lease term on which the revised proposal must be made. [The Landlords’] interpretation of my powers under regulation 33(2) is such as to provide the potential for locking a tied pub tenant into a cycle of litigation. Such delay would place a greater burden on the tenant than on [the Landlords] as a huge international brand with deep pockets.”

(5) The 1996 Act – jurisdiction

    1. The Arbitration Act 1996 permits a challenge to an award in limited circumstances. Under section 68 a party may challenge an award on the ground of serious irregularity affecting the tribunal, the proceedings or the award; and under section 69 a party may appeal to the court on a question of law arising out of the award.
    2. Under section 68(2), a “serious irregularity” is defined as meaning “an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant [including] – (a) failure by the tribunal to comply with section 33 (general duty of tribunal)… (b) the tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction….).
    3. Under section 69(3), the Court may grant leave to appeal for an error of law if satisfied that “the determination of the [question of law] would substantially affect the rights of one or more of the parties …., the question is one which the tribunal was asked to determine, …. on the basis of the findings of fact in the award, the question is one of general public importance and … the decision of the tribunal is at least open to serious doubt, and… it is just and proper in all the circumstances for the court to determine the question”. On what I was told on behalf of the Landlords on 18 December 2019, I considered that this test was satisfied, subject to the OPCA having an opportunity to address the questions of law at an adjourned hearing, which it took up as Intervenor.
    4. Section 33 provides that

“(1) The tribunal shall – (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined….

“(2) The tribunal shall comply with that general duty in conducting the arbitral proceedings, in its decisions on matters of procedure and evidence and in the exercise of all other powers conferred on it.

“(3) If there is shown to be serious irregularity affecting the tribunal, the proceedings or the award, the court may – (a) remit the award to the tribunal, in whole or in part, for reconsideration, (b) set the award aside in whole or in part, or (c) declare the award to be of no effect, in whole or in part. The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.”

    1. Section 94 provides that “(1) The provisions of Part I apply to every arbitration under an enactment (a ‘statutory arbitration), whether the enactment was passed or made before or after the commencement of this Act, subject to the adaptations and exclusions specified in sections 95 to 98… (2) The provisions of Part I do not apply to a statutory arbitration if or to the extent that their application (a) is inconsistent with the provisions of the enactment concerned, with any rules or procedure authorised or recognised by it, or (b) is excluded by any other enactment.”
    2. Article 34(2) of the ChIArb Rules published on 1 December 2015 (to which the Tenant referred in its email to OPCA dated 9 May 2019) states:

“… All awards shall be made in writing and shall be final and binding on the parties. The parties shall carry out all awards without delay. By adopting these Rules, the parties waive their right to any form of appeal or recourse to a court or other judicial authority insofar as such waiver is valid under the applicable law.”

    1. The Tenant’s objection to jurisdiction in the present case cannot apply to the challenge under section 68 which is of mandatory effect “notwithstanding any agreement to the contrary” under section 4(1) of the 1996 Act. Arbitral rules that waive recourse to a court insofar as such waiver is valid under English law, do not waive the right to challenge an award under section 68.
    2. By contrast, section 69 is not of mandatory application and an appeal on law under that section is only available ‘unless otherwise agreed by the parties‘. However,

(a) section 51(5) of the 2015 Act and Regulation 58 of the Pubs Code provide that the statutory arbitration will be ‘conducted in accordance’ with those Rules. Thus only those rules associated with the conduct of the reference are engaged, and this did not extend to Article 34 of the ChIArb Rules, which is concerned with the form and effect of an award, including “appealability”, and was not incorporated in the procedure of the arbitration now in issue; and

(b) in any event, the applicability of the ChIArb Rules to the conduct of arbitration was not “agreed by the parties” for the purpose of section 68, but was imposed by the 2015 Act as statute (and in other cases could be potentially imposed by the choice of the arbitrator given that power under section 51 of the 2015 Act).

    1. I might add that this also appears to be the position of OPCA as stated in a letter dated 23 May 2019 to the parties, in its Factsheet 14, and in its submissions in the statutory review of the Pubs Code, to the effect that awards made under the 2015 Act can be appealed on the narrow range of grounds provided for in the Arbitration Act 1996, including sections 68 and 69, as confirmed by its counsel’s submissions before me. I was also referred to a decision of another court (without it seems any argument) in Punch Taverns Ltd v Swan Hospitality Limited [2018] EWHC 905, granting the POB leave to appeal a OPCA award pursuant to section 69 of the Arbitration Act.

(6) The challenges to the finding that the period offered was unreasonable

    1. This section of my judgment addresses the first two challenges to the Award together, in the order which I have put them above, although they were argued separately (and each at considerable length). There is an obvious danger in over-focus on specific issues, without also considering the case in the round, and risking “not seeing the wood for the trees”.
    2. The first two challenges include separate points of principle as preliminaries, both also then raise a common question as to whether Star’s 10-year Policy was relevant to whether the Landlords’ offer was MRO-compliant, the subject (of course) of the arbitration reference.
    3. I save for the subsequent section (7) of this judgment, where they bite deeper in favour of the Landlords, various points concerning the overarching intention of the 2015 Act and the Pubs Code and what constitutes substantial injustice under section 68 of the 1996 Act, but I have taken account of them on the first two challenges as well.

(a) The alleged unreasonableness of a period expiring with the current tied lease

    1. As the Landlords put it, this challenge to the Award concerns the interaction between (i) the requirement imposed by section 43(4)(a)(i), that a compliant tenancy contain such terms and conditions as may be required by virtue of section 43(5)(a); and (ii) the requirement imposed by section 43(4)(a)(iii), that a compliant tenancy not contain any unreasonable terms.
    2. According to the Government Response to the Consultation Paper ‘Pubs Code and Pubs Code Adjudicator’ (April 2016), the purpose of the power under section 43(5)(a) of the 2015 Act to specify particular terms which are required to be contained in a tenancy or licence for it to be MRO-compliant was to “propose minimum requirements designed to ensure that a tenant enjoys no less – but also no more – protection or security of tenure under their new MRO agreement than they previously had under their old tied agreement.
    3. The Landlords submit that the only “minimum requirement” specified in the Pubs Code pursuant to that power is the requirement imposed in Regulation 30 that “the proposed MRO tenancy is MRO-compliant only if its term is for a period which is at least as long as the remaining term of the existing tenancy” and that this reflects the significance of lease length in MRO negotiations.
    4. It appears that this minimum requirement replaced an original proposal that ‘MRO compliant agreements should be for a minimum of five years’ because it was thought that a requirement which did not mirror the terms of the existing lease would unduly interfere with the parties’ existing rights:

“Retaining the consultation proposal that an MRO-compliant tenancy must be for a minimum of at least five years or the remainder of the existing tenancy, whichever is the shorter, would not provide a realistic MRO offer for tenants. It would create an inequality where tenants could have to exchange security of tenure in exchange for an MRO compliant tenancy…

“Equally establishing that an MRO-compliant tenancy must be for the greater of a period of at least 5 years or the remainder of the existing tied tenancy would have distorting consequences in that tenants would be able to obtain additional security of tenure through the mechanism of the MRO option.”

    1. The Landlords’ case is that a lease proposal which offers to (at least) match the period of the existing lease in compliance with Regulation 30, cannot be unreasonable for the purposes of section 43(4)(a) (iii), and by finding to the contrary, the DPCA erred in law. They argue that by requiring an MRO offer which meets that Regulation 30 requirement, the Pubs Code satisfies the basic principle that underlies the 2015 Act that the tied pub tenants should not be worse off than they would be if they were not subject to any product or service tie.
    2. I reject that submission. To the extent that the Government’s response to the Consultation Paper may be of any assistance, it does not determine or change the obvious interpretation of the 2015 Act and the Pubs Code, which is that whilst an MRO-compliant tenancy must be for a period at least as long as to the remaining period of the tied lease, that does not entail the reasonableness of such a period on offer or exclude the possibility that in any particular case, it is unreasonable.
    3. In short, the requirements in Regulation 30 as to the minimum offered lease period, and in section 43(4) and (5) and Regulation 3l as to the reasonableness of offered lease terms, are cumulative as to what might be an MRO-compliant offer as to lease terms including period. The reasonableness or otherwise of the period offered is not determined merely because it complies with the minimum requirement in Regulation 30(2). It might still be unreasonable under section 43(4) and (5) and Regulation 31.

(b) The alleged misuse of the Landlords’ information

    1. The Landlords complain vigorously at the disclosure and use of Star’s 10 year Policy by the DPCA in the arbitration and the Award. They stress first that she requested and received that information as regulator, responsible for exercising a public law function by way of investigating and monitoring and enforcing compliance with the Pubs Code, and not in her capacity to arbitrate and resolve commercial disputes between tied pub tenants and POBs as to whether a proposed tenancy is MRO-compliant.
    2. Under paragraph 19 of Schedule 1 to the 2015 Act, the OPCA has an express power to require a person to provide documents or information in that person’s possession or control, for the purposes of an investigation or for monitoring whether a pub-owning business has followed a recommendation or “for the purposes of exercising functions in relation to the offer of a market rent only option“; and under paragraphs 20 to 22, it is an offence, punishable by a fine, to fail to comply with a requirement to provide information or documents, or knowingly to provide false information in response to such a requirement.
    3. The Landlords next pray in aid the so-called “Marcel Principle” as enunciated in Marcel v Commissioner of Police of the Metropolis [1992] Ch 225, in which Sir Christopher Slade stated (at 262C-D):

“In my judgment, documents seized by a public authority from a private citizen in exercise of a statutory power can properly be used only for those purposes for which the relevant legislation contemplated that they might be used. The user for any other purpose of documents seized in exercise of a draconian power of this nature, without the consent of the person from whom they were seized, would be an improper exercise of the power. Any such person would be entitled to expect that the authority would treat the documents and their contents as confidential, save to the extent that it might use them for purposes contemplated by the relevant legislation”.

    1. In Re Arrows Ltd (No 4) [1995] 2 AC 75, the House of Lords upheld the Marcel Principle, Lord Browne-Wilkinson stating (at 102G and 104D):

“In my view, where information has been obtained under statutory powers the duty of confidence owed on the Marcel principle cannot operate so as to prevent the person obtaining the information from disclosing it to those persons to whom the statutory provisions either require or authorise him to make disclosure…

“The extraction of private and confidential information under compulsion from a witness otherwise than in the course of inter partes litigation is an exorbitant power. It is right that such information should not be generally available but should be used only for the purposes for which the power was conferred.”

    1. In Re Atlantic Computers Ltd [1998] BCC 200, Robert Walker J (as he then was) applying the Marcel Principle, held that a liquidator’s powers to obtain information under the Insolvency Act 1986 should not be used to give the liquidator as a litigant in ordinary litigation, any special advantages in that litigation.
    2. In R (Ingenious Media Holdings plc) v Revenue and Customs Commissioners [2016] 1 WLR 4164 the Supreme Court also applied the Marcel Principle (as stated by Lord Toulson at [17]) in determining whether a Revenue official had acted lawfully in disclosing the claimants’ confidential tax information to journalists, and held that a statutory exception to that duty of confidentiality, which permitted disclosures “made for the purposes of a function of the Revenue and Customs“, should be construed strictly so as to permit disclosure only to the extent reasonably necessary for HMRC to fulfil its primary function.
    3. The Landlords submitted that the Marcel Principle applies to the Star 10-year Policy as (a) confidential and commercially sensitive information (b) acquired by the DPCA pursuant to her legal powers as regulator; the fact that this was without express reference to her statutory power of compulsion was immaterial, because she could only request such information, and Star would only have provided it, because of her coercive powers; and therefore it could not be disclosed to any third party or used unless required or authorised by statute.
    4. These are powerful points leading to the Landlords’ key submission on this aspect, namely that the 2015 Act does not contemplate that confidential information acquired from a POB by OPCA as regulator could be disclosed and used in an arbitration under the 2015 Act with a tied pub tenant, absent any express provision to that effect.
    5. The Landlords put forward four overlapping reasons for this. First, they say that under the eiusdem generis principle of construction, the PCA’s power to obtain information “for the purposes of exercising functions in relation to the offer of a market rent only option” in paragraph 19(3) is to be interpreted as a reference only to the PCA’s regulatory functions (eg to provide advice or guidance on MRO offers under sections 60 and 61) and if Parliament had intended that information relating to the offer of a MRO option acquired in the PCA’s regulatory capacity could then be used in the resolution of an arbitral dispute, it would have said so expressly (cf section 45, which makes express reference to the PCA’s functions “in connection with the resolution of disputes“).
    6. Secondly, the Landlords draw attention to indications that Parliament was alive to the possibility of a conflict between the PCA’s regulatory and arbitral roles, and sought to guard against a blurring of those roles (a) in section 48(5) which provides that where a dispute between a tied pub tenant and a pub-owning business is referred to the PCA for arbitration, the PCA can either arbitrate the dispute itself or “appoint another person to arbitrate the dispute“, as explained in the Note to the effect that this provision enables the PCA to appoint another arbitrator where a conflict of interest may exist, for example, where the PCA has previously advised or investigated an issue relevant to the dispute; and (b) in paragraph 10 of Schedule 1, which requires the OPCA to make procedural arrangements for dealing with any conflict of interest affecting its officers or staff.
    7. Thirdly, in a similar vein, section 52 of the 2015 Act provides that, where the PCA appoints another person as arbitrator, the PCA may require the arbitrator or the parties to the arbitration to provide information to assist the PCA in carrying out functions under Part 4 of the 2015 Act. Thus, it is said, information obtained during the dispute resolution process can be used for regulatory purposes, but there is no similar provision permitting information to flow in the opposite direction, indicating that Parliament did not intend that information obtained for regulatory purposes could be used in arbitration proceedings.
    8. Fourthly, the OPCA has recognised that information obtained in arbitrations should not be shared with third parties, and thus implicitly accepted the converse, that information obtained for regulatory purposes should not be used in arbitrations. Pursuant to paragraph 10 of Schedule 1, OPCA published a Conflicts of Interest Policy in July 2016, and the following statements on its website:

“The PCA is aware of both the need to separate the roles of regulator and arbitrator and to be as transparent as possible about the way it carries out each of these roles…

“In discussions with pub companies or any other person or body, the PCA will never discuss individual cases which are or may be the subject to arbitration…

“The PCA is aware that parties to arbitrations are entitled to have full confidence that the arbitrator has no conflict of interest and conducts arbitrations fairly. A further safeguard is provided through the oversight of the PCA’s Compliance Officer, who will take all necessary steps to ensure that there is a clear separation of functions and that neither the PCA nor the Deputy PCA does anything that could compromise that confidence or give rise to a reasonable perception of bias.”

    1. On this basis, the Landlords contend that the DPCA had a conflict in acting as statutory arbitrator in this matter and since she had information as regulator from Star which could not be disclosed and used in the arbitration with the Tenant, without its consent, she could not decide the matter fairly and impartially and she should have (a) resigned as arbitrator or (b) if under any uncertainty as to that, told the parties that she was in possession of information as regulator and invited the parties to make submissions to her on admissibility before disclosure to the Tenant, rather than merely commenting on the content of the information, after disclosure to the Tenant in the first place.
    2. In the Award, and in observations and submissions to the Court, the DPCA and then the OPCA first submitted that where it acquires information from a POB as regulator which is “directly connected” to issues raised in an arbitration, that information should be made known to the Tenant; and if the POB does not do that, then the arbitrator cannot “un-know” information received as regulator, and therefore it is only fair for her to provide the information to the Tenant.
    3. This raises the crucial question of whether Star’s general policy on MRO tenancy duration was relevant or disclosable information in the arbitration. The Landlords attempted to persuade the Court that it was not, because Star might depart from that policy in some instances, and in any event it was a subjective process, which could have no bearing on whether or not the particular term length offered to the Tenant was objectively reasonable in the circumstances of this case.
    4. By providing the Tenant in this arbitration with commercially sensitive information, it was put in a better position than it would have been in had it been free of tie, inconsistent with the principles underlying the 2015 Act, and inconsistent with the ruling in Re Atlantic which prohibited the arbitrator from deciding unilaterally to disclose that information to the Tenant without proper authorisation.
    5. After weighing these arguments, I am far from convinced by the Landlords’ arguments. First, the Marcel Principle requires them to establish that the relevant statutory framework did not include as one of the purposes of the OPCA’s “regulatory” powers, the proper resolution of disputes as to MRO-compliance through the statutory arbitration and other processes envisaged.
    6. It seems to me that the 2015 Act and the Pubs Code, read as a whole, implicitly allowed for that and there is no good reason to exclude such a purpose from the object of the OPCA’s regulatory powers. The provisions as regards possible conflicts do not dictate that the arbitrator must recuse herself if she has relevant information as regulator; and transmission of information from arbitrations to the regulator, far from dictating that information cannot be passed the other way, supports an integrated view of the OPCA’s dual functions.
    7. I do not read the 2015 Act and Pubs Code as laying down an absolute dichotomy, a complete separation between the OPCA officers’ role as regulators and as arbitrators. Nor do I see the need for justice in its arbitrations, involving the possible need for disclosure, as opposed to or even a counterweight to the Marcel Principle. On the contrary, the functions of OPCA as regulator sit in harmony with its arbitrations, serving the same purposes in achieving fairness in the industry including MRO-compliant leases.
    8. It is inherently likely that the OPCA as regulator would be or become aware of matters concerning or obtained from POBs and relevant to MRO disputes which its officers arbitrate. It is then a matter for the judgment of the arbitrator whether any particular such matter is of such significance to the dispute that it would or might feature in the reasons for deciding it such that fairness requires it to be disclosed to the tenant for that purpose and to enable equal opportunity for submissions on both sides.
    9. The fact that this may intrude, both from the regulatory and dispute resolution viewpoints, on the POB’s commercial freedom and property rights (as discussed further below) does not militate against that reading under the statutory framework. Such an intrusion may be a proportionate, due response to the purposes and needs of the system set up under the 2015 Act and the Pubs Code.
    10. Indeed to debar OPCA officers from acting as arbitrators when they obtain relevant information as regulators would create a considerable potential for disrupting that system. This is entirely different from a conflict which may arise for other reasons, contrary to the need for independence in arbitrators. The co-dependency of the regulatory and arbitral functions of OPCA under the 2015 Act and the Pubs Code, as I read them, and the particularly advantageous position of OPCA’s officials, with all their knowledge as regulators, strongly tends against such possible disruption.
    11. Moreover in the context of the statutory framework as a whole, where various disclosure and conflict questions are expressly addressed, the absence of any explicit restrictions on the OPCA in this regard supports the common sense inference that its officers are and remain authorised to act as arbitrators where (or even where) it has obtained relevant information from the POB under, or under the threat (explicit or implicit) of, compulsion as regulator.
    12. The fallacy in the Landlords’ position, so it seems to me, is exposed by their emphatic and repeated contention that “In an arm’s length commercial negotiation between a [POB] and a tenant who is free of tie, the [POB] would not be required to divulge its estate management policy. For that reason, the DPCA’s actions have made the Tenant better off than he would be if he were not tied.” This is based on the false premise that the 2015 Act and Pubs Code must treat a Tenant who rejects an MRO offer as if the dispute was unregulated, to the extent that the POB was free to decide on what was and was not reasonable without objective determination with the benefit of disclosure and other processes imposed by the statutory scheme.
    13. The Pubs Code, as the Landlord acknowledges is based on the principle of fair dealing and this may require proportionate intrusions into the POBs’ business and property rights. If the Landlords were not obliged to disclose relevant information or the arbitrator was precluded from using relevant information (ensuring that both parties knew of it and could make submissions as to its effect), the purposes of the 2015 Act would be subverted.
    14. As for the Landlords’ contention that Star’s 10-year Policy was irrelevant because it was subjective and could be departed from in any particular case, I regard that as wholly untenable. The MRO offer being assessed as reasonable or not was made by the very POB which devised and used such a general policy. Whether or not it reflected terms common in non-tied tenancies (under Regulation) is not determinative, but to claim the policy and reasons for departing from it were subjective and thus wholly irrelevant to the objective question of reasonableness, is absurd.
    15. A POB’s policy as to the lease periods it will generally offer is a valid, possible starting point or at least a factor in considering what is reasonable not only in its fair interests but (especially when it is a major POB with some 20% of tied houses) also in the market. Of course there may be good reasons to depart from that policy, but these cannot be argued out if the landlord does not explain them.
    16. In short a general policy of a landlord and the reasons for seeking to depart from it may possibly be important considerations in deciding whether a particular offer is justified, where that question has to be adjudicated; and to seek to exclude such evidence entirely, without more, might well give rise to suspicion as to the “fair dealing” or otherwise of the landlord concerned.
    17. However, be that as it may, the extent to which Star’s 10-year Policy was significant in this case, was for the arbitrator to assess, after submissions from both sides. If the ground for alleged inadmissibility was its irrelevance, the same points and perhaps more would feature in arguing the substance; and unless it was inadmissible on some other ground, there would be no purpose in a two-stage consideration.

(c) The questions of reasonableness and justice in the Award

    1. The Landlords criticise the conclusion in the Award to the effect that the Landlords had failed to show what their reasons were for offering the lease that they did and that they were reasonable ones. They say that in an arbitration commenced by a tenant under Regulation 32, the burden of proving the unreasonableness of the POB’s response lies on the tenant and not the POB, and that the POB’s reasons for not applying its general policy were irrelevant.
    2. In my judgment the question of burden in this case is artificial. The arbitrator was entitled as a matter of law to find that, having failed to put forward a reason for not applying its usual policy to lease length, there was no good reason and that the lease length proposed by the Landlords was accordingly unreasonable and not compliant. I decline to set aside or vary the Award for any error of law under section 69 of the 1996 Act in this regard.
    3. Pursuant to section 33 of the 1996 Act, the DPCA was required to act fairly and impartially between the parties, and to adopt procedures suitable to the circumstances of the particular case. But I do not accept the Landlords’ contention that by disclosing Star’s confidential commercial information to the Tenant, without prior notice or consent, the DPCA contravened the Marcel Principle and/or failed to comply with her general duty under section 33, thereby exceeded her powers contrary to section 68(2)(a) of the 1996 Act or purported to exercise a power which she did not have, to disclose information acquired in her regulatory capacity to the Tenant in the arbitration, contrary to section 68(2)(b).
    4. It seems to me that the above questions of principle sought to be raised by the Landlords in this case, fundamentally fail because of the obvious relevance of Star’s 10-year Policy sought and known to the OPCA as regulator, to the issue of reasonableness or unreasonableness of their MRO offer, the subject of the arbitration. Even if the DPCA had breached section 33, which she did not, it did not cause substantial or any injustice to the Landlords as required under the section 68 jurisdiction.
    5. The Landlords submitted on this aspect that:

(a) but for the alleged procedural irregularity, the outcome of the arbitration may have been different, because if the DPCA had not used that information in the arbitration, she may have concluded that the period of the lease offered was reasonable; and

(b) if the Award is permitted to stand, the Landlords would face an invidious choice between complying with their regulatory obligations to provide information requested by OPCA, which can then be deployed in a private arbitration with a tied pub tenant to their disadvantage, or refusing to comply with their regulatory obligations which is a criminal offence under the 2015 Act, punishable by a fine.

    1. Not for the first time, this reasoning, in my judgment, acts against the Landlords and exposes the justice in the Award. The fact that Star’s 10-year Policy was disclosed in the arbitration and available to be argued as significant or not for the reasonableness of the Landlords’ revised lease offer, tended to the efficacy of the arbitration and the purposes of the 2015 Act and the Pubs Code.
    2. The regulatory and arbitration functions of OPCA, and the obligations of disclosure by the Landlords both regulatory and as arbitration parties, cannot be chopped apart in an attempt to ensure that their commercial interests outweigh their statutory obligations. By seeking to exclude Star’s 10-year Policy from the arbitration, the Landlords might be hoping to outwit both procedural and (subject to any explanation for disregarding their general policy) substantive fairness in resolving the dispute.

(7) The challenge to the finding that the Landlords must offer a 5 year period

    1. The Landlords forcefully contend also that the power assumed by the DPCA in the Award to require them to offer a lease period of at least 5 years, interferes significantly with their fundamental rights to contract on such terms and to dispose of their property as they choose because it deprives them of possession or as they put it “full access” to the Pub their property for a period two years longer than they were prepared to offer to the Tenant voluntarily.
    2. It cannot be doubted that clear language is required to displace the presumption against state interference with a person’s property rights or other economic interests (see Bennion on Statutory Interpretation 7th ed. at para 27.8) and if there is any doubt as to the way in which statutory language should be construed “it should be construed in favour of the party who is to be dispropriated rather than otherwise“, as it was put by Buckley LJ in Methuen-Campbell v Walters [1979] QB 525 at 542.
    3. Section 3 of the Human Rights Act 1998 requires that, insofar as it is possible to do so, primary and subordinate legislation must be read and given effect in a way that is compatible with the Convention rights, which includes the right, under Article 1 of the First Protocol to the European Convention on Human Rights, to the peaceful enjoyment of possessions. Any derogation from those rights requires clear statutory language.
    4. As Lord Hoffmann stated in R v Secretary of State for the Home Office, ex p Simms [2000] 2 AC 115 at 131E:

“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”

    1. That being clear law, the Landlords submitted first that there is no clear language in the 2015 Act nor in the Pubs Code permitting the DPCA to interfere in the commercial negotiations between the Tenant and the Claimants and order a landlord to offer specific terms. To the contrary, section 45(2) of the 2015 Act indicates that the PCA’s powers are limited to determining the question of whether terms proposed by the pub-owning business are MRO-compliant.
    2. The scope of a statutory arbitration between a tied tenant and pub-owning business is defined by section 45 of the 2015 Act which permits the Secretary of State to make provision for dispute resolution in respect of MRO disputes concerning “whether … (b) a proposed tenancy or licence is MRO-compliant …“.
    3. Regulation 32(2) of the Pubs Code specifies that the tenant “may refer the matter to the Adjudicator”. The matter capable of being referred (and therefore the scope of the reference) is thus limited, in this case, to whether the POB’s full response (including the proposed MRO tenancy) complied with the requirements of Regulation 29.
    4. Regulation 33 of the Pubs Code spells out the consequences in an arbitration concerning the compliance of an MRO tenancy offer with Regulation 29, including “…(2) Where – (a) a matter is referred to the Adjudicator under regulation 32(2)(a) to (c); and (b) the Adjudicator rules that the pub-owning business must provide a revised response to the tied pub tenant, the [POB] must provide that response within the period of 21 days beginning with the day of the Adjudicator’s ruling or by such a day as may be specified in the Adjudicator’s ruling. (3) A “revised response” is a response which includes the information mentioned in regulation 29(3)(a) to (c).”
    5. Thus the result of a finding that the MRO offer is non-compliant is that the POB must provide a ‘revised response’ within 21 days. Regulation 32 does not state that the arbitrator can determine the separate and logically subsequent question of whether, if a proposed tenancy is not MRO-compliant, it would be rendered compliant by the insertion of a particular term, and still less does it state that she can order at the same time that the pub-owning business include that particular term in order to make a tenancy MRO-compliant.
    6. There is no other provision entitling the arbitrator to determine the content of the revised response and no other suggestion in the Pubs Code that such an order may be made. If the arbitrator were permitted to order the terms that the POB is required to include in its revised response, there would be no need for a dispute resolution mechanism in respect of the revised response.
    7. The Landlords point out, secondly, by way of contrast, where the 2015 Act and the Pubs Code does permit interference with a POB’s rights and commercial interests, it expressly identifies the basis for that interference and the manner in which it is to be exercised: see for example sections 44(2) and 45(3) of the 2015 Act and Part 7 (Regulations 36, 37 and 59) of the Pubs Code under which the rent payable under a proposed MRO lease can be imposed upon the POB in the event of a failure to reach agreement with the tenant.
    8. Similarly: (a) Part 13 of the Pubs Code expressly provides for the avoidance of terms of a tied-pub tenancy which purport to restrict the rights of the tenant under the Code; and (b) Regulation 28 of the Pubs Code restricts the pub-owning business from exercising any right to recover rent during the pendency of the MRO procedure. The absence of any equivalent language entitling the PCA to determine the content of the other clauses of an MRO tenancy offer is a clear indication that Parliament did not intend to confer such a power on the PCA.
    9. Thirdly, the Landlords rely on the letter dated 9 December 2019 to the Court from the Government Legal Department on behalf of OPCA apparently acknowledging the absence of clear language granting the power in issue, by stating that “… the PCA and DPCA consider that they have jurisdiction to issue a ‘positive’ award where necessary and appropriate, but have brought the need for a better drawn basis for their powers, to the attention of the Secretary of State, as part of the Review”.
    10. Fourth, the Landlords’ repeat the overarching submission on this and their other challenges, addressed above, that the intention of the statutory scheme, and the MRO regime in particular, was to set out certain minimum requirements which are designed to secure that tied pub tenants are treated fairly and are no worse off – but no better off – than they would be under a non-tied agreement, but otherwise to give the parties commercial freedom as to how they choose to conduct their relationship.
    11. As the Parliamentary Under-Secretary of State for DBIS, Baroness Neville-Rolfe stated: “… the only requirement for a lease to be MRO compliant are set out in Clause 43(4). Other than this, it is up to the pub company to decide what the MRO lease or licence looks like. The pub company will be free to offer a new lease or tenancy without it being considered to be discriminatory.”
    12. After considering those strong submissions, and the observations of the DPCA and the submissions of law by counsel on behalf of OPCA, I am persuaded that, notwithstanding the practical points advanced against the Landlords, they are right in denying the power on the part of arbitrators under the relevant statutory provisions, to order that the provision whose absence rendered the POB’s offer unreasonable, to be inserted in the resulting revised offer.
    13. There is obviously a major distinction between a finding that an offer is unreasonable because it contains a proposed period of less than 5 years, and an order that the revised offer contain a period of at least 5 years. Apart from anything else, in principle – although I do not say for one moment that it would or could be appropriate in the present case – the POB might consider the former and produce a revised offer with compensatory terms in return for a period of less than 5 years, for example by rent or repair provisions more favourable to the Tenant.
    14. As the Landlords put it, it could not have been intended in the statutory framework that OPCA, as arbitrator of whether an offer was MRO-compliant, would have the power unilaterally to change one term in an MRO offer, given that any MRO offer represents a commercially balanced package of terms which are inter-dependent, without clear express wording.
    15. I consider with respect that paragraph 62 of the Award, to the effect that the powers of the arbitrator in Regulation 33(2) are “not exhaustive… [and] its language is permissive in that it does not restrict [the arbitrator] in the scope of any ruling [she] may make as to the terms of the revised proposal”, is wrong. The language of the 2015 Act and the Pubs Code is restrictive as well as permissive, or more simply put, permissive language is not sufficient to empower the arbitrator to interfere with the economic and property interests of the parties unless clearly expressed and applicable to that end.
    16. I am sympathetic to the OPCA’s objection, that if the arbitrator is not permitted the power to specify and impose reasonable terms in a revised offer (this already having been the second arbitration reference between the parties), there is a danger of locking a tied tenant into a cycle of litigation, as the Landlords might repeatedly propose terms, which are repeatedly referred to arbitration, the arbitrator decides that the terms proposed are no longer unreasonable and thus MRO compliant, so leaving the rest of the statutory MRO procedure and the Pub’s future as free-of-tie in abeyance.
    17. The point is well-made and I am not wholly satisfied by the Landlords’ two answers to this fear, which they deny in any event that they have any intention or reason to escalate. First, they say that the 2015 Act and the Pubs Code empower OPCA as regulator to control or address the risk which it identifies, by investigating whether a POB has failed to comply with the Pubs Code and if a POB has failed to comply, imposing financial penalties or making further recommendations.
    18. Secondly the Landlords suggest that if OPCA considers the regulatory powers provided by the statute are insufficient or that additional arbitral powers are required, it should recommend a change to the legislation. In particular, they say, section 46 of the 2015 Act imposes an obligation upon the Secretary of State to review the Pubs Code at regular intervals and to recommend to Parliament any revisions to the code that would enable it to reflect more fully its essential principles.
    19. Pursuant to that provision, the DBIS is currently undertaking a statutory review, in which OPCA has (so far) said that the Secretary of State may “wish to consider whether the Code should provide further prescriptions or presumptions on…the nature of compliant terms, to reduce the risk of protracted challenge either in arbitration or to the exercise of the regulator’s powers in this area“, although it has not (yet) recommended any extension or clarification of the powers of an arbitrator appointed pursuant to the Pubs Code.
    20. I cannot but consider these may not be practical solutions for now, and that at least in theory there is a risk of further delay, cost and attrition involved in repeated offers and arbitrations, which might harm the Tenant more than the Landlords. But whilst these points do not cure easily the lack of power, on my understanding of the 2015 Act and the Pubs Code, for the arbitrator to impose what she might consider a reasonable period and/or other terms of a POB’s offer for an MRO-compliant lease, that does not dissuade me from the conclusion of law to which I am driven as to the absence of such a power in the arbitrator within the statutory framework as it stands.
    21. It seems to me that given the absence of such a power, paragraphs 61 and 62 do cause substantial injustice to the Landlords, given that it has not been established that they cannot formulate a reasonable revised offer with a lease period of less than 5 years, but with other compensatory terms. The error in this part of the Award is therefore an appealable irregularity under section 68(2)(b) of the 1996 Act.
    22. The leading authority, Lesotho Highlands Authority v. Impregilo SpA [2006] 1 AC 221, puts the central question as to whether section 68 or section 69 may apply – see Lord Steyn at para [24] – as “whether the tribunal purported to exercise a power which it did not have or whether it erroneously exercised a power that it did have“. This case falls into the first category: by ordering the Landlords to include a specific term in their revised response – a minimum 5 year period – the DPCA did not merely erroneously exercise a power that she had, rather she exercised a power that she did not have under the relevant legislation.
    23. Section 68 of the 1996 Act is of course a “long stop” provision designed to correct cases in which a tribunal has gone seriously wrong: see Lesotho Highlands at para [27]. The threshold test to establish such a significant error is whether it results in a substantial injustice. As correctly stated in Merkin, Arbitration Law at paragraph 20.8:

“…The accepted test now seems to be that there is substantial injustice if it can be shown that the irregularity in the procedure caused the arbitrators to reach a conclusion which, but for the irregularity, they might not have reached, as long as the alternative was reasonably arguable.”

    1. In my judgment, the third challenge passes this test. If the DPCA had reached the correct conclusion about the extent of her powers, she could not have made that part of the Award to the extent of requiring the revised offer to contain a proposed lease period of at least 5 years, rather than simply directing the Landlords to issue a revised response as provided by Regulation 33, in which they would no doubt take account of her views including lease period, or risk detriment in further or other processes under the 2015 Act. This was a serious irregularity.

(8) Conclusion

  1. For the reasons set out above, I dismiss the first and second challenge as I have listed them in this judgment, concerning the reasonableness of the Landlords’ offer, but allow the third challenge and vary the Award, so that the ruling in paragraphs 61 and 62 thereof is set aside under section 68(3) of the 1996 Act.
  2. It is unnecessary and inappropriate to remit the Award for reconsideration by the DPCA in the circumstances which I have set out, and (in case my view on this matters) I do not consider that my finding as to her error in relation to the third challenge entails that she be debarred from determining any further arbitration reference between the Landlords and the Tenant.
  3. I would ask Counsel to prepare a draft order for my approval, and to make any consequential applications in writing within 7 days.

Tricon Energy Ltd v MTM Trading LLC [2020] EWHC 700 (Comm) (23 March 2020)

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Neutral Citation Number: [2020] EWHC 700 (Comm)
Claim no: CL-2019-000165

IN THE HIGH COURT OF JUSTICE
THE BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
QUEEN’S BENCH DIVISION
COMMERCIAL COURT
In the Matter of the Arbitration Act 1996
And in the matter of an Arbitration

Royal Courts of Justice
Strand, London, WC2A 2LL
23/03/2020

B e f o r e :
MR JUSTICE ROBIN KNOWLES CBE
____________________

Between:

In the Matter of the Arbitration Act 1996 And in the matter of an Arbitration TRICON ENERGY LTD

 

Claimant/ Arbitration Respondent
– and –

 

 
MTM TRADING LLC

Defendant/ Arbitration Claimant

____________________

Thomas Steward (instructed by HFW LLP) for the Claimant (Respondent in the Arbitration)
Karen Maxwell (instructed by Lax & Co LLP) for the Defendant (Claimant in the Arbitration)
Hearing date: 19 September 2019

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

Robin Knowles J:

Introduction

    1. The claimants, Tricon Energy Ltd (“the Charterers”) appeal pursuant to section 69 of the Arbitration Act 1996 (“the 1996 Act”) in respect of a question of law arising out of the award of an experienced arbitral tribunal, dated 13 February 2019 (“the Award”). Permission to appeal was given by Popplewell J on 21 June 2019.
    2. The defendants, MTM Trading LLC (“the Owners”) were the owners of the vessel ‘MTM HONG KONG’ (“the vessel”) which was chartered to the Charterers under a charterparty dated 13 February 2017 (“the Charterparty”).
    3. The Owners brought a claim for demurrage in the amount of US$56,049.36 as a result of delays at both the load port, Antwerp, and the discharge port, Houston. A formal demurrage claim was submitted by email on 9 June 2017, which attached a number of documents. The demurrage due was calculated in the net sum of US$55,841.16. The claim was subsequently revised to US$56,049.36, the figure maintained in the arbitration proceedings.
    4. The Charterers disputed that the demurrage claimed was due to the Owners. The principal grounds were that the demurrage claim had not attached all of the necessary documents and that, because the 90-day period to submit those documents had elapsed, the demurrage claim had become time-barred.
    5. At the invitation of the parties, the tribunal made the Award on the basis of written submissions alone. By the Award, the tribunal held that the Owners’ demurrage claim succeeded in full. It awarded the Owners US$56,049.36.

The Charterparty terms

    1. The Charterparty was on an amended Asbatankvoy form.
    2. The most relevant provisions of the Charterparty were as follows:

By clause 10:“Laytime/Demurrage

… …

(e) If load or discharge is done simultaneously with other parcels then laytime to be applied prorate between the parcels.

(g) In the event of Vessel being delayed in berthing and the Vessel has to load and / or discharge at the port(s) for the account of others, then such delay and/or waiting time and /or demurrage, if incurred, to be prorated according to the Bill of Lading quantities”.

By clause 12:

Statement of Facts

Statement of facts must be signed by supplier or receiver, respectively. If they refuse to sign, the Master must issue a contemporaneous protest to them. Owner shall instruct each port agent to release port information to Charterer on request and to forward to Charterer the statement of facts and N.O.R. as soon as possible after Vessel has completed loading or discharge there”.

By clause 38:

Time Bar Clause

Charterer shall be discharged and released from all liability in respect of any claim/invoice the Owner may have/send to Charterer under this Charter Party unless a claim/invoice in writing and all supporting documents have been received by Charterer within [90] days after completion of discharge of the cargo covered by this Charter Party or after other termination of the voyage, whichever occurs first. Any claim/invoice which Owner may have under this Charter Party shall be waived and absolutely barred, if claim/invoice and all supporting documents are not received by Charterer before the time bar”.

    1. Both parties accepted that a manuscript amendment to clause 38 meant that the time bar period was one of 90 days.

Common ground

    1. The following was common ground:

(a) the Vessel tendered Notice of Readiness (“NOR”) at the loadport, Antwerp, on 21 February 2017 at 11.12;(b) hoses disconnected on 25 February 2017 at 20.20;

(c) NOR was tendered at the discharge port, Houston, on 20 March 2017 at 01.12;

(d) the Vessel was shifting to her berth between 14.48 and 20.40 on 21 March 2017;

(e) discharge commenced on 22 March 2017 at 03.20;

(f) discharge was completed, with hoses disconnected, at 04.30 on 23 March 2017.

    1. A second parcel of cargo was discharged at the same berth in Houston. This engaged the provisions of clause 10 of the Charterparty, which governs simultaneous cargo operations.
    2. The Owners’ claim for demurrage of US$55,841.16 was submitted within the 90-day period (on 9 June 2017). The claim was supported by the demurrage invoice, laytime/demurrage calculations, NOR, vessel timesheet/statement of facts, hourly rate/pressure logs and various letters of protest.
    3. The Owners did not provide copies of the two bills of lading for the two parcels of cargo (the Charterers’ parcel and the second parcel).
    4. The statement of facts provided did not accurately record the bill of lading quantities, at least insofar as the bill of lading for the Charterers’ parcel was concerned. The Owners stated that the error arose from the wrong figure having been recorded by the Master in the NOR for discharge at Houston which was then inserted into the statement of facts and not picked up by the port agent.
    5. The statement of facts for the third party’s parcel of cargo was redacted and covered the discharge port only. It suggested that the bill of lading quantity for that parcel was 6,014.906 MT.

The dispute

    1. The Charterers’ case was that the Owners had failed to provide “all supporting documents” in accordance with clause 38 because copies of the bills of lading were not provided.
    2. The Owners’ case was that their claim was sufficiently documented for the purpose of clause 38 by the statements of facts and, in any event, the bill of lading for the second parcel was not an available document for the purposes of clause 38.

The question on the appeal

    1. The question of law on which the Charterers have been granted permission to appeal by Popplewell J is framed as follows:

“Where a charterparty requires demurrage to be calculated by reference to bill of lading quantities, and contains a demurrage time bar which requires provision of all supporting documents, will a claim for demurrage be time-barred if the vessel owner fails to provide copies of the bills of lading?”

The Award

    1. The tribunal answered the question in the negative, on the basis that the provision of the statement of facts was sufficient.
    2. The tribunal reasoned:

“The statement of facts which records the bill of lading figure is in reality all that Charterers need to check that the apportionment of waiting and discharging time has been correctly calculated.”

    1. The tribunal added:

“We were not persuaded by the Charterers’ argument that they needed to see the bill of lading to satisfy themselves that the cargo quantity figures recorded in the statements of facts had been calculated on the same basis, namely measured in air or in a vacuum; since the statements of facts were prepared by ship’s officers in the knowledge that they would be required to pro-rate discharging time, they would have used the cargo quantity figure recorded by the same method in each bill of lading.”

    1. The tribunal recorded that to the best of its recollection in disputes involving the discharge of different parcels of cargo, parties to those disputes have “only ever adduced in evidence statements of facts and never any bills of lading”. It also had “very real doubts whether an owner could properly forward a copy of a bill of lading to a third party in an unconnected transaction without the permission of the holder of that bill of lading”.

Interpretation

    1. The Charterers argued that the tribunal was in error in construing clause 38 of the Charterparty as requiring no more than the presentation of sufficient information to allow the Charterers to understand the Owners’ case. They argued that “all supporting documents” had to be submitted, and that included the bills of lading for both the Charterers’ parcel and the third-party parcel. Without such documents, they argued, the Charterers could not determine whether the claim for demurrage was well-founded.
    2. The Owners, on the other hand, argued that the tribunal was correct and that on its proper construction, clause 38 only required presentation of “essential” documents, which generally meant the statement of facts.
    3. In this regard the Owners relied on the statements made by Mr Justice McNair in Metalimex Foreign Trade Corporation v Eugenie Maritime Co. Ltd., [1962] 1 Lloyd’s Rep. 378 at page 386:

“… when one is dealing with general disputes under a charter-party such as this, it is wholly reasonable and in the interests of both parties that there should be some time limit imposed within which claims should be made … Great difficulties may be anticipated by both owners and charterers in obtaining the necessary information as to facts, or evidence as to facts, if some limit is not put upon the time within which claims can be presented”.

    1. The Owners also referred to Longmore LJ’s judgment in The Eagle Valencia [2010] EWCA Civ 713 at [23] that demurrage claims must be made “promptly” to allow factual investigation to be done “while minds are moderately fresh”, and Popplewell J’s statement in The Ocean Neptune [2018] 1 Lloyd’s Rep. 654 at [16] that demurrage time bar claims are intended “to enable the parties to have a final accounting as swiftly as possible and, if any factual enquiries have to be made, to ensure that the parties are able to do so whilst recollections are reasonably fresh”. These passages, argued the Owners, showed that the proper meaning of the phrase “all supporting documents” was all essential documents rather than every document that might lend support to the Owner’s case.
    2. In my judgment these passages are addressed principally to the reason for time limits. Further in none of the passages relied upon was the court seeking to define what documents are required to be presented under the clause. As explained by Hamblen J (as he then was) in The Adventure [2015] 1 Lloyd’s Rep 473 at [37], in The Eagle Valencia Longmore LJ was: “simply stating that the NOR is an essential document; he was not saying that only essential documents need to be presented”.
    3. In The Abqaiq [2012] 1 Lloyd’s Rep. 18 (a case concerning Clause 20.1 of the BPVoy4 form) Tomlinson LJ explained (at [65]) that the requirement was for “documents which objectively [the charterers] would or could have appreciated substantiated each and every part of the claim”, and so that they “were thereby put in possession of the factual material which they required in order to satisfy themselves that the claim was well-founded”.
    4. In that case the following documents had been provided:

“(1) a summary demurrage report, plus detailed demurrage reports for Freeport and Singapore; (2) notice of readiness, port log, statement of facts and Master’s letters of protest for Freeport; and (3) notice of readiness, statement of facts, discharging log, timesheet, Master’s letter of protest and pumping log for Singapore.”

Mr Thomas Steward, for the Charterers noted these documents included a port log and a timesheet as well as a statement of facts recording that information. He suggested that it was clear from this that a statement of facts is not sufficient in and of itself even if it contains important information. I do not consider that the fact that a port log and a timesheet were provided in one case gives them the quality of required documents in all cases. However Mr Steward also used their provision to argue that what was important was the provision of the primary source of information, because (as in the present case) a statement of facts could be wrong.

    1. Ms Karen Maxwell, for the Owners, referred to clauses which required the documents provided to substantiate “each and every constituent part of the claim”. She argued that those words imposed an evidential standard of proof as part of the time bar, and were notable by their absence in the present case. She said the words “supporting documents” in clause 38 should be given their natural meaning and that meaning extended only to documents relied on in support of the claim.
    2. I do not accept that the words “substantiate each and every constituent part of the claim” are a relevant point of distinction. In each of the authorities cited by Ms Maxwell, the courts endorsed the statements made by Bingham J in The Oltenia [1982] 1 Lloyd’s Rep 448 at page 453 that the commercial intention underlying such clauses is to: “ensure that claims were made by the owners within a short period of final discharge so that the claims could be investigated and if possible resolved while the facts were still fresh …”. In The Adventure Hamblen J expressly stated at [26] that the documentary requirement was not onerous and applied to a very limited class of documents which, if they existed, ought to be capable of submission without undue difficulty or expense.
    3. Ms Maxwell contended that signed statements of fact are “essential” or “primary” documents in a demurrage claim. Where such essential documents are submitted, the underlying purpose of the clause 38 does not, she argued, require the Owners to provide further documents that duplicate the information. She said the parties are most unlikely to have intended to impose such a documentary requirement and this was because it was inefficient or wasteful. Rather, effect should be given to the natural meaning of the words used, and to the purpose of the clause, by construing it as requiring the provision of documents that are relied on by the Owners in support of the relevant claim, that are “sufficient” to allow the Charterers to understand and evaluate that claim.
    4. As Mr Steward highlighted, the Charterparty in the present case contains an express reference to “Bill of Lading quantities” in clause 10(g). While clause 10(e) does not make a specific reference to bill of lading quantities, it is made clear in 10(g) that “pro rating” means a division according to bill of lading quantities. The tribunal was right to observe in the Award that the Charterparty “made it clear” that pro-rating for demurrage purposes had to be calculated by reference to the bill of lading quantities. Furthermore the Charterparty in the present case refers not simply to “supporting documentation” but “all” such documentation.
    5. In these circumstances I do not consider it possible to treat the bills of lading as outside the requirements of clause 38. The practical difficulties that Ms Maxwell suggested the Owners might encounter in having to produce bills of lading were not in my judgment an answer. In the present case there was no evidence that the bills were unavailable to the Owners (or even, as Mr Steward said, that they were not in the Owner’s possession). The suggestion was that they were confidential, but there I would accept Mr Steward’s submission that if there were sensitive elements to the bill of lading, those could very easily be redacted and the redaction would not realistically include the quantities. If a bill of lading was not available then a proper explanation of that fact would need to be provided for the purposes of clause 38 alongside what was available.
    6. One final point made by Ms Maxwell was that failure to submit the third-party bill cannot affect the entirety of her claim but only the part of the claim attributable to delays in berthing. She contended that that element of demurrage is addressed separately in the Charterparty, attracts separate and unique evidential requirements and can naturally be “hived off” from the remainder on the claim. In this regard she relied on Hamblen J’s comments in The Adventure [44] to [45], citing The Eternity [2009] 1 Lloyd’s Rep 107 and Cooke, Voyage Charters para 16.21(4).
    7. In the present case I am not persuaded that this point, on which I heard less argument, is good on the particular wording of Clause 38 and in the context of the Charterparty as a whole. The clause refers to a claim/invoice as a single item and does not (in contrast to the clause in The Adventure) refer to “constituent part[s]” of a claim for demurrage. Accordingly, I find that the Owners’ failure to produce bills of lading in support of their demurrage claim bars the entire claim.

Conclusion

  1. For these reasons, I am respectfully unable to agree with the conclusion of the experienced tribunal on this occasion. I answer the question formulated at paragraph 17 above “yes” but only on the basis of an interpretation of the particular clauses in this case, and without suggesting that there is a requirement to provide bills of lading where these are not available in a particular case.

Sharma v Military Ceramics Corporation [2020] FCA 216 (20 February 2020)

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FEDERAL COURT OF AUSTRALIA

Sharma v Military Ceramics Corporation [2020] FCA 216

File number:
NSD 2003 of 2019
Judge:
STEWART J
Date of judgment:
20 February 2020
Date of publication of reasons:
26 February 2020
Catchwords:
PRACTICE AND PROCEDURE – application to adjourn interlocutory application made informally immediately prior to hearing – delay – prejudice to parties, other litigants and administration of justice if application granted
ARBITRATION – international commercial arbitration – application to set aside arbitral award under Art 34 of the UNCITRAL Model Law on International Commercial Arbitration – interlocutory application to summarily dismiss set aside application as being out of time – whether application to set aside filed within three months of arbitral award being received by the applicant as required by Art 34(3) of the Model Law – when arbitral award was received

ORDERS

NSD 2003 of 2019
BETWEEN:
SANJAY SHARMA
Applicant
AND:
MILITARY CERAMICS CORPORATION
First Respondent

VIPUL ARORA
Second Respondent

RAM LALL KHETAN
Third Respondent

NITISH KHETAN
Fourth Respondent

JUDGE:
STEWART J
DATE OF ORDER:
20 FEBRUARY 2020

THE COURT ORDERS THAT:

  1. The applicant’s application for an adjournment of the hearing today (both the case management hearing and the hearing of the first respondent’s interlocutory application filed on 9 January 2020) made by email to the Associate of Stewart J and received at 5:45am AEDT on 20 February 2020 is dismissed.
  2. In consequence of Art 34(3) of the UNCITRAL Model Law on International Commercial Arbitration being Sch 2 to the International Arbitration Act 1974 (Cth) the Originating Application filed on 29 November 2019 be summarily dismissed.
  3. The applicant pay the first respondent’s costs of the proceeding.
  4. The first respondent have leave to make an application for a lump sum costs order to a Registrar of this Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

INTRODUCTION

  1. Before me on 20 February 2020 was the first respondent’s interlocutory application to summarily dismiss the applicant’s originating application. There was also an application on behalf of the applicant to adjourn the hearing of the first respondent’s interlocutory application to a date at the end of April or in May 2020.
  2. I dismissed the adjournment application and granted the first respondent the relief sought in its interlocutory application by summarily dismissing the originating application. That was in the application of Art 34(3) of the UNCITRAL Model Law on International Commercial Arbitration (being Schedule 2 to the International Arbitration Act 1974 (Cth) (IAA)) which requires an application to set aside an arbitration award – which is what the applicant’s originating application sought – to be made within three months of the applicant receiving the award.
  3. These are my reasons for making those orders.

BACKGROUND

  1. The first respondent, Military Ceramics Corporation (MCC), is a company incorporated in the British Virgin Islands.
  2. The applicant and each of the second, third and fourth respondents are citizens of India and are resident in India. I shall refer to them as the Indian parties. From what is stated in the arbitration award to which further reference is made below, the Indian parties appear to be business people.
  3. In March 2012, MCC and the Indian parties concluded a joint venture agreement. It provided for disputes to be resolved by arbitration with the seat of the arbitration being Sydney, Australia, and for the arbitration to be conducted in accordance with the rules of the Australian Centre for International Commercial Arbitration (ACICA). The law governing the March 2012 agreement was expressed to be the law of Hong Kong.
  4. In September 2014, MCC commenced arbitration proceedings against the Indian parties in relation to a dispute said to arise under the March agreement. In December 2014, ACICA appointed Ms Kim H Rooney, a Hong Kong barrister, as sole arbitrator.
  5. In the arbitration proceeding the applicant nominated a particular email address as being his address for the purposes of notice in that proceeding. Without identifying the address, I shall refer to it as the Sanya Builders email address. Thereafter, correspondence over more than three years with regard to the conduct of the arbitration was apparently conducted with the applicant at that email address. The applicant was legally represented and participated from time to time in the arbitration proceeding, but at other times he did not participate.
  6. On 4 April 2018, Ms Rooney published her final award in the arbitration. The award reflects it as having been signed and dated in Sydney on that date. In terms of the award, the Indian parties are to pay MCC various sums totalling approximately US$5.8 million, AU$333,000 and HK$138,000 including costs. Provision is also made in the award for interest on the principal sums at 8% per annum.
  7. In August 2018, MCC commenced proceedings in the High Court of Delhi in India to enforce the final award in India. I shall refer to this as the Indian proceeding.

THE PROCEEDING IN THIS COURT

  1. On 29 November 2019, the applicant commenced a proceeding by originating application in this Court in which he sought relief setting aside the final award and costs against MCC. That relief was said to be sought under Art 34 of the Model Law which deals with recourse against an arbitral award. Article 34(2) of the Model Law sets out various limited grounds on which an arbitral award may be set aside at its seat.
  2. Subject to other provisions of Pt III of the IAA, s 16(1) of the IAA gives the Model Law the force of law in Australia. In terms of Art 1(1) of the Model Law, it applies to international commercial arbitration. An arbitration is international if the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different states (i.e. countries) (Art 1(3)). It is common ground that the Model Law applies in this case – the applicant relies on it to set aside the award and MCC relies on it to summarily dismiss the set aside application.
  3. The originating application recorded that the applicant’s solicitor on record was Mr Tony Soubris of Soubris & Associates Lawyers in Hurstville, Sydney. The significance of this will shortly become apparent.
  4. In the applicant’s affidavit filed in support of the originating application he identified numerous grounds to the application to set aside the award. They cover a wider range of matters including such things as error of law and errors in assessing the evidence. Few of the grounds, if made out on the facts, would qualify as grounds to set aside an award under Art 34(2) of the Model Law.
  5. After having commenced the proceeding, the applicant did not apply for leave to serve the originating process on MCC. Further, he did not serve the originating process on MCC.
  6. MCC first learnt of the applicant’s originating application in this Court on 16 December 2019 when the applicant served a copy of the originating application in the Indian proceeding. There was a call over listed in the High Court in Delhi on 18 December 2019. The originating application in this Court was filed in the High Court in Delhi just in time for that call over. I infer that that was for the purpose of opposing or perhaps delaying or staying that proceeding.
  7. As it happens, the matter was not called on 18 December 2019 in Delhi because the judge allocated to hear the case was ill. The matter was relisted in the High Court of Delhi for 24 February 2020. As will be seen, that date has some significance.
  8. Also on 16 December 2019, my Associate emailed Mr Soubris suggesting that the matter be listed for a first case management hearing on 6 February 2020. It was anticipated at that time that the applicant would in the meanwhile do whatever was required to serve the application, if it had not already been served, and to notify the respondents of the date for the first case management hearing.
  9. On the same day, Mr Soubris replied to my Associate asking that the matter be listed for 20 February 2020 or thereafter to suit his convenience. That email was copied to the applicant at the Sanya Builders email address which had the consequence, as will be seen, that subsequent correspondence to and from my Associate was also sent to that address.
  10. On 17 December 2019, Mr Greg Willis, a solicitor and a director of MCC, wrote by email to Mr Soubris pointing out that the originating application had not been served and that it was out of time because of the three month time limit provided for in Art 34(3) of the Model Law. Mr Willis also set out details of the occasions on which he contended that the applicant had received the final award which commenced the running of time, such that the originating application was filed well outside the three months allowed.
  11. By email on 17 December 2019, my Associate emailed Mr Soubris (copied to the Sanya Builders email address) notifying that the matter was listed for a case management hearing on 20 February 2020. At that stage, no respondent had entered an appearance.
  12. Given that the notice to Mr Soubris, who was unambiguously on record for the applicant at that time, was also copied directly to the applicant, the applicant can be taken to have known from 17 December 2019 that the matter was listed for a hearing on 20 February 2020, i.e. the applicant was given more than two months’ notice of the hearing.
  13. On 9 January 2020, Mr Willis on behalf of MCC filed a notice of address for service in accordance with the rules, as well as the interlocutory application referred to above (at [1]) and a supporting affidavit.
  14. In that regard, Art 34(3) of the Model Law, on which the interlocutory application was said to be based provides as follows:

An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request had been made under article 33, from the date on which that request had been disposed of by the arbitral tribunal.

  1. No request had been made under Art 33 so the reference to that provision in Art 34(3) is not relevant for present purposes.
  2. On 6 February 2020, Mr Soubris filed a notice of intention of ceasing to act for the applicant. The notice was in accordance with Form 7 of the Federal Court Rules 2011 (Cth) (FCR). It stated that after seven days from the date of service of the notice, Mr Soubris would file in the registry a notice that he had ceased to act as the applicant’s lawyer in the proceeding and that the applicant must, within five days after that notice, file in the registry a notice of address for service.
  3. Rule 4.05(1) of the FCR requires the notice to be served on the party who the lawyer represents, and r 4.05(2) requires the party to file a new notice of address for service within five days of the lawyer’s notice being filed. I infer that Mr Soubris served the notice on the applicant as he was required to do by the rule, because that is what he was required to do and because, as will be seen, the applicant did not later say that Mr Soubris had not served the notice on him.
  4. On the hearing of the adjournment application, Mr Willis tendered an email dated 8 February 2020 as evidence that on that day he served on Mr Soubris the interlocutory application, MCC’s genuine steps statement, MCC’s notice of address for service, the supporting affidavit, and an outline of submissions in support of the interlocutory application. The submissions had been filed on that day.
  5. The email stated that the documents that were attached were “stamped copies”, by which I infer that they were the copies that had been issued by the Court and that bore the stamp of the Court. The copy of the interlocutory application that was served on Mr Soubris therefore included the Court’s “notice of filing and hearing” form bearing the Court’s stamp and the signature of the Registrar. That form gave notice that the interlocutory application was listed for hearing on 20 February 2020 at 9:30am.
  6. It is thus apparent that at a time when Mr Soubris was still on record for the applicant – even before the expiry of the minimum period of seven days provided for in r 4.05(1)(b) – he received notice of the interlocutory application being listed for 20 February 2020. The applicant was thus given proper notice of that listing. In that regard, r 17.01(2) of the FCR requires that a party be given at least three days’ notice of an interlocutory application. Here the applicant was given 12 days’ notice. That was over and above the more than two months’ notice that he had in any event been given of the first case management hearing for the same date and time.
  7. On 12 February 2020, my Associate sent an email to the parties requesting them to confer with regard to appropriate orders to be made on 20 February 2020. The email was sent to the applicant’s Sanya Builders email address.
  8. On 13 February 2020, Mr Willis wrote to my Associate copying the applicant (at the Sanya Builders email address) and Mr Soubris asking that the interlocutory application be determined on 20 February 2020 on account of the fact that the matter would next be before the High Court of Delhi on 24 February 2020. Plainly, Mr Willis hoped that the originating application could be dismissed before the matter was called in Delhi on 24 February so that the fact of a pending application to set aside the award could not be relied on to delay or stay the Indian proceeding.
  9. Mr Willis gave evidence on affidavit that in India litigation moves at “glacial speed” and it is not uncommon for a straightforward case to take up to 12 years before a judgment is given. He was clearly seeking to minimise the opportunities for further delay in the Indian proceeding. I infer that if the originating application in this Court remained on foot on 24 February 2020 when the Indian proceeding was called, there was a real risk that the Indian proceeding would be significantly delayed. Such delay would cause MCC significant prejudice.
  10. On 19 February 2020 soon after 9:00am, my Associate emailed the parties (including Mr Soubris and the applicant at the Sanya Builders email address) advising that it was the Court’s intention that the interlocutory application would be heard on 20 February 2020. This email in effect served to confirm the notification of the listing for that day that had been given to Mr Soubris by Mr Willis on 8 February 2020.
  11. The email also pointed out that Mr Soubris had not yet withdrawn as solicitor for the applicant because he had not filed a notice of ceasing to act in accordance with Form 8, notwithstanding the passage of seven days since him having filed his notice of intention to withdraw.
  12. Later that day, Mr Soubris filed his notice of ceasing to act.
  13. Shortly before 6:00am on 20 February 2020, my Associate’s inbox received an email from Kapil Kher, the applicant’s advocate and solicitor in the Indian proceeding. The email was in the applicant’s name in which he requested an adjournment of the hearing on 20 February 2020 to a date at the end of April or in early May 2020. In summary, the applicant’s grounds were as follows:

(1) that on account of some misunderstandings on the quantum of fees chargeable by Mr Soubris he had ceased to act on 19 February 2020;
(2) the applicant is resident in India and unable to represent himself on 20 February 2020 “because of distance and travel times between the two countries” and it will not be possible for him to appear at the hearing;
(3) the applicant’s father had died in the month of January 2020 in respect of which the applicant has to perform certain rituals and will not be able to travel to Sydney for at least a month to attend a hearing and to engage the services of another lawyer.

  1. When the matter was called on 20 February 2020, a person identifying himself as Mr Vivek Sharma, the nephew of the applicant, appeared on behalf of the applicant. Mr V Sharma is not a lawyer and has no rights of appearance in the Court. Mr Willis, who appeared for MCC, did not object to Mr V Sharma’s appearance and I therefore gave him leave to address the Court on the applicant’s behalf.
  2. Mr V Sharma referred to the email from the applicant cited above and requested on behalf of the applicant that the matter be adjourned for the period of time indicated in the email. Mr V Sharma did not raise any new grounds for the adjournment.
  3. Notably, in neither the email nor in Mr V Sharma’s address to the Court was it contended that the applicant had not had ample notice of the interlocutory application being listed for 20 February, or that Mr Soubris’s withdrawal had taken the applicant by surprise. He had had notice of the listing from 17 December 2020 and of Mr Soubris’s intended withdrawal from at least 6 February 2020.

REFUSAL OF THE ADJOURNMENT

  1. The High Court made clear in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175, that the types of matters that should be considered in the context of an adjournment application include: (a) the explanation for the adjournment; (b) the detriment to other parties; and (c) the detriment to the court and other litigants. That is not an exhaustive list.
  2. On the basis of the facts set out above, I took into account the following matters in refusing the applicant’s application for an adjournment of MCC’s interlocutory application.
  3. First, the applicant has delayed in the prosecution of this case. As indicated above, the originating application was filed on 29 November 2019, but it was never served and no application to serve outside of the jurisdiction was ever made. The applicant appears to have been content to have had the proceeding filed for the purpose of relying on it in the Indian proceeding without actually progressing the proceeding in this jurisdiction.
  4. Second, there is no suggestion that the applicant has been unable to appoint lawyers to represent him or that he does not have the means to ensure that his interests are properly represented. While he was participating in it, he was represented in the arbitration proceeding, he is represented in the Indian proceeding and he commenced the proceeding in this Court represented by a solicitor and a barrister. Moreover, the evidence of Mr Willis on affidavit is that the applicant manifests as a wealthy man with interests in real estate development, hotels and restaurants. In short, the applicant’s explanation for the need for the adjournment is unconvincing; to the extent that there is a need it has been created by him.
  5. I have had regard to the applicant’s difficulties arising from the death of his father to impact on his ability to travel. I do not accept that they prevented him from being reasonably able to appoint lawyers to represent him at the hearing in Sydney on 20 February 2020.
  6. Third, the applicant has not identified any basis upon which it might be suggested that the interlocutory application would not succeed; he has not filed any evidence and he has not identified any defence to the interlocutory application. The only suggestion is in his affidavit in support of the originating process in which he says that he received the final award on 2 October 2019.
  7. However, he does not say in terms that he did not also receive it at an earlier time, and, as will be seen, the evidence on the interlocutory application that the applicant in fact received the award much earlier than that is very strong. The applicant received notice of MCC’s contentions in that regard by email to Mr Soubris on 17 December 2019 (see at [20] above]) and he received MCC’s evidence in support of those contentions, and MCC’s submissions based on that evidence, on 8 February 2020 (see at [28] above), yet he never sought to dispute let alone answer that case.
  8. The applicant also does not suggest that the Court has the power to extend the time period of three months provided for in Art 34(3) of the Model Law or, if there is such a power, that there is any basis to exercise it in this case. It is thus not necessary to decide whether the time limit can be extended. The different positions on this question in a number of different jurisdictions are explored by Anselmo Reyes IJ in the Singapore International Commercial Court (SICC) in BXS v BXT [2019] SGHC(I) 10 at [25]-[41]. His Honour concluded that there is no discretion in the SICC to extend the time period.
  9. In the absence of an express power given to the court in other legislation to extend the time period, which is the position in respect of this Court, the balance of authority heavily favours there being no power to extend the time period: Emerald Grain Australia Pty Ltd v Agrocorp International Pte Ltd [2014] FCA 414; 314 ALR 299 at [8]; Hebei Jikai Industrial Group Co Ltd v Martin [2015] FCA 228; 324 ALR 268 at [61]- [63]; ABC Co v XYZ Co Ltd [2003] SLR 546 at [9]; PT Pukuafu Indah v Newmont Indonesia Ltd [2012] 4 SLR 1157 at [29]-[30]; Opotiki Packing & Coolstorage Ltd v Opotiki Fruitgrowers Co-operative Ltd (In Receivership) [2003] 1 NZLR 205 at 210 [12] and 219 [13]; Downer-Hill Joint Venture v Government of Fiji [2005] 1 NZLR 554 at [31] and [62]; Moohan v S. & R. Motors [Donegal] Ltd [2009] IEHC 391 at [3.4]; Todd Petroleum Mining Co Ltd v Shell (Petroleum Mining) Co Ltd [2014] NZCA 507; [2015] 2 NZLR 180 at [57]; Kyburn Investments Ltd v Beca Corporate Holdings Ltd [2015] NZCA 290; 3 NZLR 644 at [62].
  10. Although, as explained, it is not necessary to decide the point, and it would be undesirable to do so without there having been any contradictor, I agree with the New Zealand Court of Appeal that “the whole scheme of the [Model Law] is to restrict court review of arbitration awards both with respect to grounds and time”: Opitiki at 220 [19]. In the words of the Full Court in TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; 232 FCR 361 at [109] per Allsop CJ, Middleton and Foster JJ, the Model Law requires for its efficacy “the swift and efficient judicial enforcement and recognition of contracts and awards”. That underlying policy also supports the proposition that the Court lacks the power to extend the time in Art 34(3).
  11. It is thus unlikely that even if the applicant had some basis to apply to extend the time period, and he made such an application, there would be any power in the Court to accede to such an application.
  12. The result is that on the available evidence there is simply no purpose in any adjournment; it would merely serve to delay what otherwise appears to be inevitable.
  13. Fourth, I took into account the overarching purpose of the civil practice and procedure outlined in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (FCA Act), namely to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.
  14. In my view, the applicant had ample notice of the listing of the interlocutory application, and of his solicitor’s intention to withdraw from representing him, yet he made no other arrangement to be legally represented at the hearing to oppose the interlocutory application. Moreover, he offered no defence to the interlocutory application. To have adjourned the interlocutory application to another day may have resulted in significant prejudice to MCC because of the possibility of further delay in the Indian proceedings and it would have served no identifiable legitimate purpose.

THE DISMISSAL OF THE PROCEEDING

  1. The adjournment application having been refused, the question of MCC’s interlocutory application arose for decision. In that regard, r 17.04 of the FCR provides that an interlocutory application can be heard and determined in the absence of a party if there was service of the interlocutory application and the party does not appear.
  2. As indicated above, Art 34(3) of the Model Law requires an application for setting aside an award to be made within three months “from the date on which the party making that application had received the award”. Bearing in mind that the applicant’s originating application for relief against the arbitral award was issued on 29 November 2019, the question is whether the applicant “had received the award” on or before 29 August 2019, i.e. three months’ earlier.
  3. MCC adduced the following evidence in support of its case that the applicant had received the award before 29 August 2019.
  4. First, MCC submitted that the applicant received the award from ACICA on 6 April 2018. The evidence in that regard is as follows.
  5. By letter dated 6 April 2018, Ms Deborah Tomkinson, the Secretary General of ACICA, wrote to the parties to the arbitration proceeding saying that ACICA had been asked by the arbitral tribunal to communicate its final award dated 4 April 2018. The letter stated that the final award is “enclosed” and that hard copies of the award would follow by courier.
  6. The letter was sent under cover of an email dated 6 April 2018 which was addressed to, amongst others, the applicant at the Sanya Builders email address and the applicant’s nominated counsel in the arbitration proceeding, namely Mr Kuldeep Rai SC, a Delhi advocate.
  7. The face of the email records that the attachments to it included the letter which I have referred to and the final award.
  8. Although he does not say what the source of his knowledge on the point is, Mr Willis in his affidavit says that a printed copy of the letter enclosing the final award was also sent by ACICA using a courier to the applicant’s postal address but that it was not accepted at that address.
  9. At no stage did the applicant dispute that he had received the award as an attachment to the email from Ms Tomkinson 6 April 2018. Moreover, by s 161 of the Evidence Act 1995 (Cth) it is presumed that he did receive the email and the attachment. There is nothing to raise sufficient doubt so as to displace that presumption.
  10. In the circumstances, I find that the applicant received the award on that date which was nearly 17 months before the commencement of the three month period preceding the date that the set aside proceeding was filed, or, simply put, some 20 months prior to the filing of the originating application in this Court..
  11. Second, MCC submitted that the applicant also received the award via the enforcement proceedings in India on 12 February 2019. The evidence in that regard is as follows.
  12. MCC commenced the Indian proceeding on 27 August 2018 by filing an enforcement petition pursuant to Pt II of the Indian Arbitration Act. The enforcement petition contained within it, as required by the Indian Arbitration Act, a notarised copy of the original of the final award.
  13. MCC’s Indian advocate, Mr Mohit Singh of P&A Law of New Delhi, sent a copy of the enforcement petition (including the award) to the applicant at his Sanya Builders email address on 12 February 2019 by email in two parts. Mr Singh deposed to an affidavit of service in the Indian proceeding which recorded that the High Court of Delhi had ordered that the applicant could be served “via all permissible modes including email” and that that had been done by serving a complete set of the enforcement petition including “documents” (which I understand to include the award) by email on the respondent on 12 February 2019.
  14. Mr Singh’s affidavit attached the two emails which showed that they were sent to the applicant at the Sanya Builders email address on 12 February 2019 and that they had as attachments a document titled “Enforcement Petition under 47 & 49…” in two parts.
  15. In the circumstances, I find that the applicant received the final award by email on or about 12 February 2019. That was some six months before the commencement of the three month period prior to the applicant’s proceeding being filed in this Court, or, nine months prior to the filing of the originating application in this Court.
  16. Third, MCC submits that the applicant received the final award by it being furnished to his solicitor in Sydney on 6 August 2019. The evidence in that regard is as follows.
  17. Mr Willis annexed to his affidavit a letter from ACICA to Mr Soubris dated 6 August 2019 which referenced the arbitral proceedings between MCC and the Indian parties. Relevantly, the letter stated as follows:

We refer to our previous correspondence in this matter, including our email to you dated 9 October 2018.
We also acknowledge receipt of your letter to the Australian Centre for International Commercial Arbitration (ACICA) dated 18 July 2019.
We understand you are authorised to act on behalf of Messrs Sanjay Sharma and Nitish Khetan in relation to the above-reference arbitration proceedings, which are closed.
Pursuant to your request, we enclose a certified copy of the original of the Final Award dated 4 April 2018 in the above-reference arbitration.
In relation to the other documents you have requested ACICA to provide you a copy, we are currently considering that request, including in light of the comments, if any, received from the Sole Arbitrator and the Claimant. …

  1. Mr Willis also tendered a courier’s waybill dated 6 August 2019 evidencing the shipment of a package of 0.8 kg from ACICA to Mr Soubris.
  2. In the applicant’s affidavit supporting the originating process he deals with the question of when he received a copy of the final award. In a heading in the affidavit it is stated “I/Mr Sharma did not have a signed copy of the Final Award…” Thereunder, the affidavit states that the address to which most of the written communications during the arbitration were sent to the applicant was not his address. That address is a physical address. The affidavit does not canvass the receipt of documents by email.
  3. The affidavit also deals with Mr Soubris having obtained documents from ACICA in September 2019 which were then made available to the applicant on 2 October 2019 which is when he says that he received the final award. These are apparently the documents referred to in ACICA’s letter of 6 August 2019 as being under further consideration. The affidavit does not deal with Mr Soubris’s receipt of that letter and the enclosed final award, save that it says that he was on an overseas holiday with his family from late July 2019 until 10 September 2019. In particular, the affidavit does not explain why receipt by Mr Soubris’s office of the final arbitration award on or about 6 August 2019 should not be taken as receipt by him of the award on that date. Nor does the affidavit say that the award was not forwarded to the applicant by Mr Soubris’s office in the absence of Mr Soubris.
  4. As the applicant’s affidavit was not read on the interlocutory application and he was not available for cross-examination, what he states in it is not strictly speaking evidence on the interlocutory application. I nevertheless take it into account for completeness to show that even if it was evidence in the interlocutory application it would not prove that the applicant did not receive the final award, at least in a deemed sense through it having been received at his solicitor’s office, on or about 6 August 2019.
  5. In the circumstances, I find that the applicant received a copy of the final arbitral award on or shortly after 6 August 2019. That was several weeks before the commencement of the three month period prior to the filing of the originating application in this Court. In view of my findings above that the applicant had in any event received the award on two earlier occasions, nothing turns on his receipt of the award on this third occasion.
  6. It follows, in the words of s 31A of the FCA Act and r 26.01(1)(a) of the FCR, that the applicant has no reasonable prospect of successfully prosecuting the proceeding and it should be summarily dismissed. The costs should follow the event.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stewart.

Associate:

Dated: 26 February 2020

Taupo Car Club Incorporated v TMP Limited [2020] NZHC 495 (13 March 2020)

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2019-463-000062
[2020] NZHC 495
BETWEEN
TAUPO CAR CLUB INCORPORATED
Plaintiff
AND
TMP LIMITED
Defendant
Hearing:
26 February 2020
Appearances:
G Judd QC and K Patterson for Plaintiff J W H Little for Defendant
Judgment:
13 March 2020

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

Introduction

[1] The plaintiff (TCC) is a motor sports club that conducts sport meetings and events at Centennial Park, Taupō. The defendant (TMP) operates the Taupō Motor Sports Park (also known as the Bruce McLaren Motor Sport Park) located on Centennial Park. TMP leases the land from the Taupō District Council (the Council).

[2] TCC and TMP are parties to a 2005 agreement (the Agreement) which gives TCC use rights to the track at the motor sport park for a specified number of days “free of charge” and on terms set out in the Agreement.

[3] The parties are disputing whether, under the Agreement, TMP is entitled to charge TCC a participant levy and, if so, the quantum of such a levy.

[4] The Agreement contains a multi-tiered dispute resolution process culminating in arbitration for “remaining differences” not resolved at the preceding stages of negotiation and alternative dispute resolution (ADR).

[5] TCC has applied for summary judgment seeking a declaration that it is unlawful for TMP to demand a $50 per car/day “participation levy”. TMP has filed an application in response seeking a dismissal or stay of the proceedings on the grounds that the Court lacks jurisdiction. The application for stay is based on cl 8(1) of Schedule 1 to the Arbitration Act 1996 (the Act). TMP contends that TCC’s claims breach cl 5 of the Agreement.

[6] In response, TCC contends cl 5 of the Agreement is inoperative because TMP has repudiated the Agreement. TCC claims TMP has failed to comply with its fundamental obligation to provide TCC with its guaranteed use rights free of charge and has also failed to engage with any of its cl 5 dispute resolution obligations.

[7] The critical issue I must determine is whether under cl 8 of Schedule 1 of the Act, the Agreement is inoperative; i.e. Has TMP repudiated the arbitration clause of the Agreement? If that clause is still operative, then cl 8 of the Act requires me to grant the stay TMP now seeks.

Factual background

[8] TCC has been conducting sports meetings at Centennial Park since 1959. Up until the early 2000s TCC used its own motor-racing circuit on the land leased directly from the Council.

[9] Under the Agreement, TMP agreed to develop TCC’s existing circuit and extensions on the circuit. TMP took an assignment of TCC’s lease from the Council.

[10] Under clause 3 of the Agreement, TMP agreed to pay TCC an annual fee of
$20,000 plus GST. TMP also granted TCC “guaranteed use” of specified tracks for a specified number of car race meetings per year. TMP guaranteed use of the tracks “free of charge on the basis set out in Clause 3.2 of this Agreement”.

[11] In January 2018, TMP notified TCC that it cancelled the Agreement. TCC then issued legal proceedings but those were settled at a mediation in November 2018. Under that settlement, TMP’s liability to pay TCC an annual fee of $20,000 plus GST was deleted and clause 3.2(a) was replaced as follows:

(a) The race meetings referred to in clause 3.1(b) include, free of charge, track hire, and the control tower Control-Roof for the track hired. TMP is entitled to charge for all other rights and services and including but not limited to:

(i) Catering and/or hospitality rights;
(ii) Signage rights;
(iii) Car park charge rights;
(iv) Pit garages
(v) Hospitality suites;
(vi) Participant levies;
(vii) Track cleaning levies;
(viii) non-race-control rooms in the control tower (including the timing room, the Clerk of the Course’s room, and the Stewards’ Room) (provided that TMP shall not be entitled to charge for these rooms for any of the three two-day events in clause 3.1(b)(i));
(ix) Paddock buildings/facilities (e.g. scrutineering pavilion);
(x) Temporary structures supplied by TMP;
(xi) Track (lights and start/finish) control light system;
(xii) Production broadcast or connectivity rights;
(xiii) Any other systems or facilities or rights to be provided by TMP.
[12] Clause 5 of the Agreement, which was unaffected by the 2018 settlement agreement, reads:

5.1 Initiating resolution – If a dispute arises out of or in connection with this Agreement the parties, using the procedures set out in this Clause 5, agree to make a genuine effort to resolve the dispute without resorting to litigation and without limiting in any way the parties’ obligations in Clause 2, Clause 3 or Clause 4. A party may initiate these resolution procedures by giving written notice to the other party with which it is in dispute.

5.2 Negotiations – The party who initiates the resolution procedures must name the representative in the negotiations when giving the written notice referred to in Clause 5.1. The party receiving such written notice must then promptly give written notice to the other party to the dispute naming its representative in the negotiations. Each representative must have authority to settle the dispute. Within three

(3) Business Days after both parties to the dispute have been so advised of each other’s representatives, the representatives must enter into negotiations to try to resolve the dispute. Each party to the dispute must conduct all such negotiations in good faith and with a desire to preserve a commercial relationship with the other parties to this Agreement.

5.3 Alternative dispute resolution – If the dispute is not resolved within the following 10 Business Days then, within a further five (5) Business Days, the parties in dispute must try to agree on a process for resolving the dispute, such as further negotiations, mediation, independent expert determination or mini-trial, but not arbitration or litigation. Agreement on a process is to include agreement on:

(a) the procedure and timetable for any exchange of documents and other information relating to the dispute;

(b) procedural rules and a timetable for the conduct of the selected method of proceeding; and

(c) a procedure for selection and compensation of any neutral person who may be employed by the parties in dispute.

5.5 Arbitration – If the parties in dispute fail to agree pursuant to Clause

5.3 on a dispute resolution process within the set or extended time limit or, using an agreed dispute resolution process, fail to settle the dispute within the set or any extended time limit, then any remaining differences and disputes arising between those parties concerning the construction or performance of this Agreement, or the rights and obligations of those parties (but no other differences or disputes), shall be referred to arbitration in accordance with the Arbitration Act 1996. The arbitration shall be conducted by one arbitrator, if the parties in dispute can agree upon one or, failing agreement, by an arbitrator to be appointed by the President for the time being of the Wellington District Law Society or his or her nominee.

[13] TCC had a motor sports event scheduled for March 2019. On 22 January 2019, TMP sent TCC an event contract for signature. This contract included a vehicle participation levy of $50 per car/day. TCC rejected the contract.

[14] The parties then negotiated and agreed upon interim arrangements so that the March 2019 meeting could go ahead. The meeting was held on that agreed basis. Further TCC meetings had been scheduled for June 2019 but these did not occur.

[15] TCC filed these proceedings in July 2019.

[16] By letter dated 14 August 2019, the solicitors for TMP wrote to TCC’s solicitors proposing that TCC discontinue the proceedings and that the parties instead refer TCC’s claims to arbitration in accordance with cl 5 of the Agreement. The letter noted that this would involve “skipping” the intermediate steps in the rest of cl 5 (i.e. negotiations, alternative dispute resolution, etc). TMP suggested that arbitration would likely achieve a quicker resolution of the claims made by TCC.

Relevant legal principles

[17] Clause 8(1) of Schedule 1 of the Act provides:

A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so requests no later than when submitting that party’s first statement on the substance of the dispute, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative, or incapable of being performed, or that there is not in fact any dispute between the parties with regard to the matters agreed to be referred.

[18] When interpreting arbitration agreements, a generous, liberal and inclusive reading is appropriate. The general principle, stated by this Court in Marnell Corrao Associates Inc v Sensation Yachts Ltd, is that:

Courts should uphold arbitration, by striving to give effect to the intention of parties to submit disputes to arbitration, and not allow any inconsistencies or uncertainties in the wording or operation of the arbitration clause to thwart that intention.

[19] In accordance with standard principles of contract law, a party to an arbitration agreement can lose the right to arbitrate where it has repudiated the arbitration agreement and the other party has accepted that repudiation, and so cancelled it. That is what the English Court of Appeal concluded had happened in Downing v Al Tameer, an authority TCC relies upon, addressed in greater detail below.

[20] The law in New Zealand as to cancellation of a contract is largely codified in subpart 2 of the Contract and Commercial Law Act:

36 Party may cancel contract if another party repudiates it

(1) A party to a contract may cancel the contract if, by words or conduct, another party (B) repudiates the contract by making it clear that B does not intend to –

(a) perform B’s obligations under the contract; or

(b) complete the performance of B’s obligations under the contract.

(2) This section is subject to the rest of this subpart.

38 No cancellation if contract is affirmed

A party is not entitled to cancel the contract if, with full knowledge of the repudiation, misrepresentation, or breach, the party has affirmed the contract.

Analysis and decision

[21] The parties agree that the critical question in determining the stay application is whether, prima facie, the arbitration clause of the Agreement remains operative. If the answer is yes, the proceeding must be stayed, with full consideration of the matter (if pursued) being left to an arbitral tribunal. The prima facie assessment standard of review is now well settled.

[22] The principal contention for TCC is that TMP has repudiated the arbitration agreement and in filing these proceedings TCC has accepted that repudiation. TCC further contends that the requirement in cl 5.5 for arbitration does not arise unless and until the preceding steps of the resolution dispute process set out in cls 5.1 – 5.3 have been taken. In particular, it is claimed that there has been no attempt to refine the issues (“any remaining differences and disputes”) as expressly contemplated by cl 5.5.

[23] TCC submits that TMP has persistently flouted the dispute resolution procedure in cl 5 of the Agreement. This is because it has refused to allow TCC to hold its events free of charge, as required, unless TCC submits to TMP’s demands for a participation levy at whatever level TMP sets.

[24] Mr Judd QC (for TCC) submitted that if there is a dispute under cl 5.1 of the Agreement (and there clearly is a dispute) then the procedures under the dispute resolution process are to be invoked without limiting in any way TMP’s obligation under cl 3 of the Agreement to provide track hire to TCC “free of charge”. This means that pending the determination of the dispute (which might ultimately be at the arbitration stage), TMP must adhere to the “free of charge” obligation. However, TMP, in insisting on participation levies, has repudiated the Agreement.

[25] TCC also says that TMP has no entitlement at all under the Agreement to impose a participation levy of the kind at issue here, and particularly where it is not providing any extra facilities or services in addition to what it is already contracted to provide.

[26] As noted above, TCC relies upon the English Court of Appeal decision Downing v Al Tameer, and contends that the essential facts of that case are almost identical to those of the present case.

[27] In Downing, the Court was concerned with whether the first defendant could rely on an arbitration agreement to stay proceedings. Prior to the proceedings having been issued, the first defendant ignored repeated attempts by the claimant to set arbitration proceedings in motion (requests to nominate arbitrators, etc), before eventually responding by denying any contractual relationship and stating in unqualified terms “the defendants have no intention of dealing with you further” (i.e. in relation to the obligation to arbitrate). In later correspondence, the first defendant’s solicitors had stated in similarly clear terms that it denied the existence of any contractual relationship.

[28] The Court found that prior to the issue and service of proceedings, the defendants were plainly indicating an intention not to be bound by the agreement to arbitrate. That is, they had repudiated both the contract generally and the arbitration agreement. The Court concluded:

Approaching the matter objectively, and looking at the correspondence as a whole, this was a situation which the claimant, having sought and requested the first defendant to pursue the arbitration route, only resorted to proceedings because of the first defendant’s refusal to cooperate or acknowledge the existence of the arbitration agreement. The statement made and attitude evinced in the first defendant’s letter dated 22 June 1995 in response to the claimant’s request to arbitrate, which denied any contractual relationship and stated an intention to deal with the claimant no further, was effectively maintained thereafter.

[29] I understand the frustration and concern of TCC that having long conducted events at Centennial Park and having given up its $20,000 annual fee entitlement in 2018, TMP now seeks to impose charges that appear fundamentally at odds with TMP’s obligation to guarantee use rights to TCC free of charge. However, I find that, at best, TCC’s claims and submissions establish a breach of cls 3 and 5.1 (i.e. a breach of contract) but do not amount to repudiation. I accept that there is a dispute and despite some initial delay by TMP, so do the parties. The dispute is over the interpretation of the Agreement and in my view, the arbitration clause of the Agreement remains operative for determination of that dispute.

[30] Whether a breach of contract amounts to a repudiation is “a serious matter not to be lightly found or inferred”. What has to be established is that the defaulting party has made clear it intends no longer to perform its side of the bargain. Proof of such an intention requires an investigation of the nature of the conduct, the attendant circumstances and the motives which prompted the conduct (among other things).

[31] In Kumar v Station Properties Ltd, the Supreme Court summed up the law in this way:

The mere fact that a party vigorously espouses a view of a contract’s meaning that is ultimately shown or accepted to have been wrong does not mean that the party is thereby manifesting an intention not to perform its obligations under the contract. If it is clear that the party accepts that it is bound by the contract, whatever meaning it is ultimately determined to have, the party should not be held to have repudiated the contract. By contrast, if a party persistently refuses to perform unless the other party accepts additional onerous terms inconsistent with the contract or in the mistaken view that there was never an enforceable contract, the party may well be found to have repudiated the contract. In such circumstances, the stance adopted amounts to a refusal to accept any obligation to complete the contract in accordance with its terms (emphasis added).

[32] Here, TMP accepts that it is bound by the entire contract (i.e. both the main contract and the arbitration clause) but simply takes a different stance on the meaning of participation levies, which is a matter of interpretation to be construed in light of the obligations in cl 3 generally. Clause 3.2(a) does expressly state that TMP is entitled to charge for “all other rights and services” including “participant levies”. Whatever the correct interpretation, I do not believe the threshold of a persistent refusal to perform has been reached, requiring TCC to accept additional onerous terms inconsistent with the contract. As discussed below, the parties have been attempting to negotiate a solution and an interim arrangement was reached in relation to the March 2019 race meeting.

[33] I also find that this case is not “essentially identical” or similar to Downing. At no point has TMP denied the existence of the Agreement, the dispute resolution clause or the arbitration clause. TMP has not repudiated either the main contract or the secondary agreement manifested in the arbitration clause. Despite its initial reluctance and its apparent hard-line stance on participation levies, TMP has not ignored or rejected attempts by TCC to initiate the dispute resolution process contemplated in cl 5. In Downing the first defendant denied the existence of the main contract and repeatedly ignored attempts to set arbitration proceedings in motion and indicated no intention of dealing further with the claimant. The position here is quite different.

[34] I accept the submission of Mr Judd that the principles in Downing can apply even if through filing the Court proceedings the innocent party has accepted the repudiation of the secondary agreement to arbitrate. This is because the innocent party can seek to uphold the main contract, notwithstanding the repudiation of the secondary contract. Mr Little did not dispute that proposition. However, and contrary to Mr Judd’s submission, I find that there has been no repudiation of either the main contract (the grant of use rights) or the secondary contract (the agreement to arbitrate).

[35] I now turn to address the Mr Judd’s second argument, namely that the requirement for arbitration under cl 5 does not and has not arisen in this case because the preceding steps in cls 5.1, 5.2 and 5.3 have not been met.

[36] That is not an attractive argument, particularly in a context such as this where there is a mutual obligation on the parties to make genuine efforts to resolve the disputes without resorting to litigation. As noted by Williams & Kawharu on Arbitration:

8.8.3 Dangers of multi-tier dispute resolution clauses

As noted above, specifying pre-arbitration conditions can often lead to uncertainty as to when arbitration can commence as it can be difficult to determine whether the pre-conditions to the arbitration have been satisfied, or whether they are even required to be satisfied. These difficulties have given rise to arguments that a failure to comply with particular pre-conditions renders the arbitration agreement invalid and unenforceable. Tribunals and courts are generally reluctant to reach this conclusion since, if an arbitration agreement ultimately fails, parties are likely to end up in court

– the exact place they had hoped to avoid by agreeing to an alternative dispute resolution (ADR) procedure. In other instances, arbitration may be inevitable and requiring compliance with the procedures provided for in the pre-conditions will simply add costs and further delays to the ultimate resolution of the dispute (emphasis added).

[37] The comments of Williams & Kawharu are supported by the findings of the Court of Appeal in J R Porter & Ors v Gullivers Travel Group Ltd, where that Court held:

Provisions of the type contained in clause 28 [a referral for expert determination] are common in commercial contracts. If it should be that whenever negotiations broke down after meetings, consultations and the like, the parties could come to the court for relief, or seek some remedy rather than following the agreed arbitration or other dispute resolution, there would be little point in having such agreed processes in commercial contracts. It is difficult to believe that commercial parties would agree to a dispute resolution process which was intended to deal with an important substantive dispute concerning the calculation of price, but was not intended to deal with disputes about the provision of information and documents relevant to that price calculation. Yet that is the effect of the appellant’s argument. We note that as part of the price adjustment process the appellants were entitled under clause 3.2(b)(i) of the contract to liaise with PWC regarding the audit. This provided an opportunity for them to seek information and explanations as to the basis of the calculation prior to the dispute resolution process being invoked.

[38] In any event, on the facts of this case, I find the contention that the arbitration clause is inoperative because the preceding steps in cl 5 have not been followed, should be rejected. It is clear on the evidence that the parties have been negotiating with a view to try and resolve their dispute and I reject the submission of Mr Judd that the negotiations leading to the interim solution for the March 2019 meeting were focused only on that meeting and did not deal more generally with the dispute.

[39] Mr Terry O’Brien, the President of TCC, acknowledged in his email of 13 June 2019 to Mr Tony Walker of TMP that negotiations were taking place and that in terms of cl 5 of the Agreement the parties were required to try and resolve the matter between themselves. There was also a meeting between three board members of TMP and the full committee of TCC on 10 April 2019. The letter from Mr O’Brien to the board of TMP dated 27 May 2019 confirms that the reason for the levy (namely, whether other track hirers would be charged a levy and how the figure of $50/car per day was reached) was discussed at that April meeting. In my view, while far from perfect, the steps the parties did take were broadly in accordance with the substance of the requirements imposed by cls 5.1 and 5.2 (i.e. the steps preceding arbitration). It may be that the solicitors for TMP did not always respond to correspondence from TCC’s solicitors but in my view that does not provide a basis for inferring that TMP was not taking steps to try and resolve the dispute in the manner contemplated by cl 5.

[40] I accept in principle the submission of Mr Judd that the correspondence from TMP after the proceedings which proposed moving straight to arbitration cannot cure any previous default in complying with the preceding steps in the dispute resolution process. However, in this case there is probably some fault on both sides in failing to follow all the steps in cl 5, but I do not see that as a basis for concluding that cl 5 has been rendered inoperative. The practical solution proposed in TMP’s solicitor’s letter of 14 August 2019 is surely a sensible one. As noted by Wild J in Marnell Corrao Associates Inc v Sensation Yachts Ltd, where the parties have agreed on an arbitration evaluation clause, the Court will give full weight to the manifest intention to submit disputes to arbitration and create continuing legal relations.

[41] I also note that TCC likely had the option under cl 17 of Schedule 1 of the Act to seek interim relief if there was a practical problem in relation to holding sports events with a participation levy before the dispute could be finally resolved under cl 5.

[42] For all these reasons I conclude that cl 5 of the Agreement prima facie remains operative. In accordance therefore with cl 8(1) of Schedule 1 of the Act, the proceedings must be stayed with a full consideration of the issue of the participation levy (if pursued) to be left to the relevant arbitral tribunal.

Result

[43] The defendant’s application for a stay of the proceedings dated 12 September 2019 is granted in accordance with cl 8(1) of Schedule 1 to the Arbitration Act 1996.

[44] I am of the preliminary view that the plaintiff should pay costs to the defendant on a 2B basis and that the defendant’s application for increased costs should not be granted. If the parties cannot agree, then short memoranda (no more than three pages) are to be filed and served within 14 days.

Rinehart v Rinehart (No 2) [2020] NSWSC 235 (23 March 2020)

Supreme Court
New South Wales
Case Name:
Rinehart v Rinehart (No 2)
Medium Neutral Citation:
[2020] NSWSC 235
Hearing Date(s):
On the papers
Decision Date:
23 March 2020
Jurisdiction:
Equity
Before:
Ward CJ in Eq
Decision:
In proceedings 2017/86718

1. Subject to further order, pursuant to s 8(1)(a) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), order that paragraphs 14 to 17 of the affidavit sworn 28 February 2020 by Timothy Ignatius L’Estrange be kept confidential and not be made available nor disclosed to any person other than the legal representatives of the parties in connection with this proceeding anywhere in the Commonwealth for a period of five years.

2. Pursuant to s 26 of the Civil Procedure Act 2005 (NSW), order the parties to mediation, such mediation to take place within three months of the making of these orders.

3. Order that the costs of the mediation (namely, the fees and disbursements of the mediator or mediators and any venue, equipment, or related service costs) are to be dealt with in accordance with order 2 of the orders made today in proceedings 2011/285907.

4. Direct the parties to seek to agree on (and jointly to appoint) a mediator or mediators for the purposes of the said mediation within one month of the making of these orders and direct the parties to notify the associate to Ward CJ in Eq by 17 April 2020 of the agreed identity of the said mediator(s) or, failing agreement, their proposed choice of mediator(s) (in which case Ward CJ in Eq will nominate the mediator(s) to be appointed).

5. Direct the parties, within seven days of the conclusion of the mediation, the parties are to inform the associate to Ward CJ in Eq as to whether settlement has been reached at the mediation and of any orders sought to be made in relation to the proceedings in that regard.

6. Liberty to the parties to apply to the associate to Ward CJ in Eq on three days’ notice.

7. Order Bianca Hope Rinehart, as trustee for the Hope Margaret Hancock Trust, to pay the costs of the defendants of, and incidental to, the second defendant’s amended notice of motion dated 15 July 2019 and filed on 16 July 2019, and the first defendant’s amended notice of motion dated 26 June 2019 (including the hearings of 23 May 2017, 27-28 August 2018, and 15-19, 23 and 25 July 2019), such costs to be paid on an indemnity basis and to be payable forthwith.

8. Order Bianca Hope Rinehart, as trustee for the Hope Margaret Hancock Trust, to pay the costs of the first defendant (on the ordinary basis and payable forthwith) of the hearings to set aside subpoenas issued by Bianca Hope Rinehart in these proceedings to the Institute of Public Affairs, CEF Pty Ltd and the Hon Barnaby Joyce MP (see Rinehart v Rinehart [2018] NSWSC 1102).

9. Order that the existing costs orders made in favour of the second defendant in respect of its application to set aside a notice to produce issued to it by Bianca Hope Rinehart, as trustee for the Hope Margaret Hancock Trust (see Rinehart v Rinehart [2019] NSWSC 759) be varied such that the costs be payable forthwith.

In proceedings 2011/285907

1. Pursuant to s 26 of the Civil Procedure Act 2005 (NSW), order the parties to mediation, such mediation to take place within three months of the making of these orders.

2. Order that the costs of the mediation (namely, the fees and disbursements of the mediator or mediators and any venue, equipment or related service costs) be borne (subject to any agreement between all the relevant parties to the contrary) in equal one-sixth shares by each of the Rinehart family members (i.e., Bianca (in her personal capacity), John, Hope, Ginia and Gina) and Hancock Prospecting Pty Ltd.

3. Direct the parties to seek to agree on (and jointly to appoint) a mediator or mediators for the purposes of the said mediation within one month of the making of these orders and direct the parties to notify the associate to Ward CJ in Eq by 17 April 2020 of the agreed identity of the said mediator(s) or, failing agreement, their proposed choice of mediator(s) (in which case Ward CJ in Eq will nominate the mediator(s) to be appointed).

4. Direct the parties within seven days of the conclusion of the mediation to inform the associate to Ward CJ in Eq as to whether a settlement has been reached at the mediation and of any orders sought to be made in relation to the proceedings in that regard.

5. Liberty to the parties to apply to the associate to Ward CJ in Eq on three days’ notice.

Catchwords:
COSTS — Party/Party or indemnity basis — General rule that costs follow the event — Whether costs should be ordered on an indemnity basis — Whether costs should be paid forthwith

JUDGMENT

  1. HER HONOUR: On 14 February 2020 (see Rinehart v Rinehart [2020] NSWSC 68, to which I will refer as the February Judgment), I ruled on a number of interlocutory motions in an ongoing dispute involving members of the Rinehart family. As in earlier decisions involving these parties, I refer to the Rinehart family members by their first names.
  2. Relevantly, in 2017, after obtaining judicial advice to the effect that she would be justified in so doing (see Bianca Hope Rinehart trading as trustee of the Hope Margaret Hancock Trust [2017] NSWSC 282), Bianca commenced proceedings in this Court, in her capacity as trustee of the Hope Margaret Hancock Trust (HMH Trust), against her mother (Gina) and others, seeking declaratory and other relief in relation to alleged oppressive conduct, breach of directors’ duties, and breach of contract in relation to matters occurring with respect to, among other things, the payment (or non-payment) of dividends by Hancock Prospecting Pty Ltd (HPPL) (this being proceeding no 2017/00086718, to which I will refer as the Oppression Proceeding).
  3. In an earlier proceeding, still not finally disposed of, to which I will refer as the Trustee Proceeding (proceeding no 2011/00285907), Bianca and her brother, John, had sought the removal of Gina as trustee of the HMH Trust; and, after Gina’s resignation as trustee and the appointment of Bianca as the replacement trustee, there were (and continue to be) disputes as to the documents required to be produced to Bianca by Gina as the outgoing trustee of the HMH Trust (or the process by which they are to be produced).
  4. By the time of the hearing before me in July last year, which culminated in the February Judgment, a number of interlocutory motions had been filed (some in the Trustee Proceeding and some in the Oppression Proceeding). The underlying substantive dispute by then was as to the claims made in the Oppression Proceeding, Bianca’s stated central aim in which proceeding being the recovery and protection of trust assets.
  5. For the reasons set out in the February Judgment, I referred the parties to arbitration in respect of all matters other than Bianca’s application for relief pursuant to s 247A of the Corporations Act 2001 (Cth) (the s 247A application), and I stayed the balance of the Oppression Proceeding pending the determination of that arbitration. I made various orders as to the disposal or stay of the then extant interlocutory motions and I directed the parties to file brief written submissions on two issues: first, as to the costs orders that should be made consequent upon the determination of the said motions and, second, as to my stated intention (of the Court’s own motion) to refer the parties to mediation (i.e., without having heard and determined on its merits the motion filed by Gina on 14 August 2018 in the Oppression Proceeding seeking that very relief).
  6. The parties filed brief submissions pursuant to the directions so made. Bianca then filed reply submissions on the costs issues and the defendants filed further submissions in response to Bianca’s reply submissions. Included among the initial round of submissions were brief submissions filed by the solicitor acting for Hope Rinehart Welker (the third defendant in the Trustee Proceeding), she being a respondent to Gina’s 14 August 2018 mediation motion, and one of the beneficiaries of the HMH Trust. Hope did not appear at the hearing of the stay applications before me in July last year but does wish to participate in any mediation that is ordered in respect of the underlying disputes (see her submissions below).
  7. When the Rinehart document production dispute was before me for directions on 19 March 2020, I made orders in relation to the referral of the matter for mediation indicating that I would shortly publish my reasons for that decision together with my reasons for the orders then yet to be made in relation to costs. These are those reasons.

Referral to mediation

  1. I will deal first with the issue as to whether (and in what time frame) the parties should be referred to mediation because, as it transpires, that is the least contentious of the two issues on which I sought submissions; and, as noted above, I made orders last week when the matter was before me for directions to put this in place.
  2. As I indicated in the February Judgment (at [37]), I consider it to be overwhelmingly in the interests of the administration of justice (and, in particular, of the just, quick and cheap resolution of the real issues in dispute) to force the parties to focus sooner rather than later on whether a sensible and acceptable resolution of their long-running disputes can be achieved. Since argument on Gina’s motion seeking referral to mediation had been deferred when the other interlocutory motions were before me, as a matter of procedural fairness (particularly given that Bianca had not been prepared to consent to a referral to mediation at that stage) I gave the parties an opportunity to make submissions as to the making of such a referral of the Court’s own motion. The position of the parties in relation to the proposed referral for mediation, as gleaned from those submissions, can be summarised as follows.
  3. Bianca does not now object to a referral to mediation. Her stated concern (as has been raised consistently both when the motions were before me and in her latest submissions) was to ensure that she has relevant documentation prior to any mediation in order to be able to participate meaningfully in such a mediation; her position being that the mediation is more likely to be successful if the current “informational disparity” between the parties is remedied (or at least remedied to an extent). In written submissions, Bianca’s Counsel has adverted to negotiations taking place between the parties as to document production which it is hoped will address or ameliorate that concern. (Unsurprisingly, I am not privy to those negotiations or discussions; and I understand that they are not the subject of the communications between solicitors that were put before me on a different issue at the directions hearing last week.) Nevertheless, Bianca submits that, in any event, any mediation should occur as soon as practicable and by no later than 15 April 2020. I am not aware of the significance of that particular time frame (but it would seem by now to be optimistic, being less than a month away).
  4. Hope actively supports the referral to mediation (and has indicated that she would wish to participate in any such mediation, as a party to the Trustee Proceeding, and as a beneficiary of the HMH Trust). Hope does not wish to be heard as to the time frame for any such mediation other than to note (as is apparent from the material on the court file) that there are a number of parties to, and a number of legal representatives involved in, the present proceeding; and (which is not so readily apparent at least from a quick perusal of the court file) that the location of the parties and their legal representatives is geographically disparate. That said, Hope’s position is that she will take all reasonable steps to accommodate a time frame convenient to the other parties to the proceeding and their respective legal representatives.
  5. Gina consents to the referral to mediation of the parties in both the Oppression Proceeding and the Trustee Proceeding, submitting that it is appropriate that the referral be made in each of those proceedings because the judgment was given in each of those proceedings (given that there had been motions filed in each of those proceedings) and that this will ensure that all parties interested in the “interconnected” disputes will be referred to mediation (which Gina says will be necessary if there is to be any resolution of those disputes). It is noted that not all the beneficiaries of the HMH Trust are parties to the Oppression Proceeding but that they are all parties to the Trustee Proceeding.
  6. As to the timing of the foreshadowed mediation, Gina submits that any mediation should not take place until the respondents to the arbitration presently before the Honourable Wayne Martin QC AC, the Honourable Kevin Lindgren QC AO, and Mr Michael Hwang SC (the Martin Arbitration) (that arbitration being the culmination of the referral/stay applications that were the subject of the Full Court Decision and High Court Decision referred to in the February Judgment) have put on their defences (or such later date as any party may seek). It is said that this will permit the parties properly to define the issues between them in the Martin Arbitration and will therefore increase the chances of a resolution of the “interconnected” disputes. The likely timing of such defences is addressed in a confidential affidavit sworn 28 February 2020 by Gina’s solicitor (for portions of which a suppression order is sought, and will be granted, to maintain the confidentiality of the arbitration process presently on foot). Suffice it to say that the timing of steps in relation to the Martin Arbitration seems presently to be undetermined (and, as such, the timing proposed by Gina for the scheduling of the arbitration would not meet the expectation expressed at [39] of the February Judgment that the referral to mediation take place within the near future and not be postponed to some indeterminate future time).
  7. Gina has also made submissions as to the costs of any such mediation. She notes that she, her four children and HPPL are the central parties to the disputes to be referred to mediation and says that, on one view, the appropriate course would be to have each of those parties bear one-sixth of the costs. However, for simplicity, she has proposed that the costs of the mediation be borne as to half by her and HPPL and as to the other half by her children.
  8. Finally, HPPL consents to the referral of this matter to mediation (and, indeed, suggests that there would be utility in the parties mediating all the extant disputes, including those now the subject of the proceedings in the Supreme Court of Western Australia, and/or the issues referred to what has been referred to as the French Arbitration and the Martin Arbitration, respectively).
  9. HPPL’s reasons for supporting the proposal for mediation are, in essence, that it is a party to numerous disputes involving the parties to the present proceedings; that all of its shareholders are parties to at least one of the disputes involving the parties and a number of the disputes concern some of its most valuable assets; and that, for HPPL, the disputes “are a diversion of management time and commercial focus away from its day-to-day commercial activities and operations the ultimate object of which is to create wealth for the company and its shareholders”.
  10. As to timing, HPPL submits that any mediation should occur on a date convenient for all parties to the proceeding and confirms that it will generally make itself available to participate in any mediation.

Determination

  1. As is apparent from the above, there is now no opposition from any of the parties to the referral of the parties to mediation and I therefore made such an order when the matter was before me last week. While I consider that there is considerable force to the observation of HPPL that there would be utility in a mediation of all of the extant disputes involving the Rinehart family members and HPPL’s assets, it is not within my remit to order other parties to proceedings in other courts or arbitral tribunals to participate in a mediation of those other disputes. I do, however, note that there is nothing to stop the parties that are here being referred to mediation from seeking to have other parties join consensually in the mediation, or from including in the scope of the mediation matters the subject of disputes that are presently before other courts and arbitral tribunals (with a view to trying to reach a commercial resolution of those disputes, perhaps including other entities in any such settlement).
  2. As to the timing of the mediation, I was not prepared to leave it to an indeterminate future time (particularly when the timing of steps to be taken in the Martin Arbitration, at least at the time of the submissions made in the present proceedings, is unknown). Bearing in mind: the number of parties and their representatives; any practical difficulties arising out of disparate geographical locations of the parties and their representatives; the uncertainty as to the status of the document production process which should currently be underway in relation to the documents of the trust; and the differing views of the parties as to the proposed timing of the mediation, I considered that it was appropriate to make orders that provide for a mediation to take place within three months. It seemed to me that this would be ample time for the parties (well-resourced as they must be in order to be in a position to fund all this ongoing litigation and arbitral proceedings) to put themselves in a position to be able productively to participate in a mediation (and, if there is a difficulty with that timing or an acceptable reason to defer the mediation once commenced, it is open to the parties by consent to put forward a proposed varied timeframe for the mediation).
  3. As to the costs of the mediation (other than the parties’ own costs, of course), I considered that they should be borne in equal one-sixth shares by each of Gina, HPPL and the four children (and that Bianca should bear her share of the costs in her personal capacity since, although Bianca brings the Oppression Proceeding in her capacity as trustee, the underlying disputes are also disputes in which she has an obvious personal interest, and otherwise the beneficiaries of the HMH Trust would bear an increased proportion of the costs of the mediation). I made orders accordingly.

Costs

  1. Where there is more dispute between the parties is as to the costs orders now to be made.

Bianca’s position

  1. Bianca, with one qualification, accepts that (on the basis of the general rule that costs follow the event) she should pay the costs of the applications that resulted in the making on 14 February 2020 of orders 1, 2, and 3 (i.e., the orders referring the parties to arbitration, staying the proceedings, and staying various of the extant interlocutory motions). Bianca, in her further submissions in reply to the defendants’ costs submissions, opposes any order for those costs to be on an indemnity basis; opposes the making of any forthwith costs order; and opposes any order as to the reserved costs of earlier applications to set aside compulsory processes (subpoenas and a notice to produce). I will deal with those reply submissions in due course.
  2. The qualification to Bianca’s acceptance that there should be costs orders made against her, is that Bianca submits that the costs relating to the stay of the s 247A application should be costs in the cause of that application. Bianca makes that submission for the following reasons.
  3. First, it is noted (as is certainly the case) that the s 247A application remains undetermined (pending the arbitration). Bianca says that the parties have twice prepared for a “full hearing” on the s 247A application: once, in mid-2018 (in the course of which hearing the application was adjourned), and again in mid-2019. Bianca says that the costs of the preparation for that application are not necessarily wasted; and that the application remains ready to be determined as and when the stay ceases to operate.
  4. Pausing here, the procedural history of Bianca’s attempts to have the merits of the s 247A application heard (in advance of or separately from the other interlocutory motions if necessary) has been dealt with in previous judgments. I simply here note that it has consistently been the defendants’ position that it was not appropriate for me to embark upon such a hearing (and, indeed, that it was not open to me to do so, on the basis that the s 247A application fell within the scope of the parties’ arbitration agreement). It is not useful here to restate the arguments that were put on that issue; other than to note that costs incurred in preparation for the “full hearing” of that application must be taken to have been incurred in the knowledge that, if the defendants’ arguments were accepted (albeit against my preliminary view as expressed in the course of those arguments), then those costs might either be wasted or, at the very least, might end up being duplicated at a later time.
  5. Second, Bianca notes that HPPL’s notice of motion as originally filed on 21 April 2017 in the Oppression Proceeding did not seek an order temporarily staying the s 247A application; rather, HPPL’s case then was that the application was covered by the arbitration agreement (and, if not, that the application should be dismissed or permanently stayed), which Bianca notes was something that was ultimately rejected by me. It is noted that it was not until 15 July 2019 (the first day of the hearing of the stay applications that were determined in February this year) that HPPL sought to amend its motion to seek a temporary stay of the s 247A application pending determination of an arbitration.
  6. Third, and to similar effect to the above submission, Bianca says that Gina’s 26 June 2019 notice of motion sought as its primary relief a referral of the whole of the matter (including the s 247A application) to arbitration and that Gina’s position as to any part of the proceedings not so referred was that there should be a permanent or temporary stay. Again, it is noted that the application for referral or, alternatively, a permanent stay, of the s 247A application was rejected.
  7. Thus, Bianca submits that the costs relating to the s 247A application should be carved out of any other costs order.

HPPL’s position

  1. It is convenient next to turn to HPPL’s position in relation to costs.
  2. HPPL seeks an order that Bianca pay its costs of and incidental to the amended notice of motion filed by it on 16 July 2019 (the HPPL Stay Application) on an indemnity basis and payable forthwith, including the costs of and incidental to the hearings on 23 May 2017, 27-28 August 2018, and 15-19, 23, and 25 July 2019. HPPL also seeks orders in relation to the costs of two further applications in the proceeding.
  3. First, of the hearings to set aside the subpoenas issued by Bianca to the Institute of Public Affairs (IPA), CEF Pty Ltd (CEF) and Senator Barnaby Joyce MP, those subpoenas (the Subpoenas) having been set aside (in whole or in part) with an order made at that time reserving costs (see Rinehart v Rinehart [2018] NSWSC 1102, to which I will refer as the 2018 Subpoena Judgment). HPPL seeks an order that Bianca pay its costs (on an indemnity basis and payable forthwith) of those hearings.
  4. Second, of HPPL’s successful application to set aside a notice to produce issued to it (the HPPL Notice to Produce) (see Rinehart v Rinehart [2019] NSWSC 759, to which I will refer as the 2019 Notice to Produce Judgment). Bianca was ordered to pay the costs of that application on the ordinary basis. HPPL now seeks an order that those costs be paid forthwith (but does not seek to vary the basis on which those costs are to be assessed).

General order as to costs

  1. Generally, as to the costs of the HPPL Stay Application, the orders are sought by HPPL under s 98(1) of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) and rr 42.1 and 42.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), on the basis of the general rule that costs follow the event. As indicated above, Bianca does not contest this (other than that she seeks to carve out of any such costs order the costs of the yet to be determined s 247A application); and hence it is not necessary to consider the authorities relied upon by HPPL in its submissions in support of the proposition that costs are ordinarily awarded in favour of a party who successfully obtains a stay of proceedings in favour of arbitration (HPPL citing Ansett v Malaysian Airline System (No 2) [2008] VSC 156 at [20] per Hollingworth J; Amcor Packaging (Australia) Pty Ltd v Baulderstone Pty Ltd [2013] FCA 253 at [47], [49] per Marshall J; Pipeline Services WA Pty Ltd v ATCO Gas Australia Pty Ltd [2014] WASC 10(S) at [6]- [25], [33] per Martin CJ; In the matter of Ikon Group Limited (No 2) [2015] NSWSC 981 at [25] per Brereton J as his Honour then was; Novawest Contracting Pty Ltd v Brimbank City Council [2015] VSC 679 at [34] per Vickery J).
  2. HPPL presses for the whole of its costs of the Stay Application, including the costs of and incidental to each of the hearings referred to above, without any carve-out for the costs of the s 247A application, for the following reasons.
  3. First, HPPL says that it succeeded on all issues on the HPPL Stay Application: namely, that, over Bianca’s opposition, the primary relief HPPL sought was granted (the parties were referred to arbitration on all matters except the s 247A application and there was a stay of the whole of the proceedings). HPPL further points to the fact that I had indicated in the February Judgment that, had the primary relief not been granted, the alternative relief sought would have been granted and the proceeding stayed on case management grounds or on the basis that its continuation was an abuse of process (see at [31]-[32] of the February Judgment).
  4. Second, HPPL says that the overwhelming focus of the hearing in July 2019 was the respective stay applications; that the time spent dealing with the remaining motions (other than the unconscionability application) was negligible; and that the time spent on the unconscionability application arose in the context of whether it should be heard before the stay applications (and, therefore, HHPL says that the costs of that application are costs of or incidental to the HPPL Stay Application; but in any event, it is said that HPPL was in all material respects the successful party in respect of the unconscionability application – it being ultimately stayed pending the outcome of the arbitration).
  5. Third, HPPL submits that the costs of the 23 May 2017 hearing (as to the timetabling of the various interlocutory applications then before me) which were reserved (see [42]-[43] of Rinehart atf The Hope Margaret Hancock Trust v Rinehart [2017] NSWSC 803) and the costs of the 27 and 28 August 2018 hearings (which were also largely also reserved – see [149]; [152] of the 2018 Subpoena Judgment) are costs of and incidental to the HPPL Stay Application (it being said that HPPL was successful in persuading me not to hear the s 247A application in advance of the Full Court or the High Court decisions and that HPPL’s submissions on sequencing were ultimately accepted). (HPPL says that the question of costs was not dealt with at the hearing on 27/28 August 2018 beyond a submission on 28 August 2018, referring to the course of debate at T 80, T 81, T 86.)
  6. Fourth, it is submitted that no other order is appropriate in the circumstances. HPPL says that it has not engaged in any disentitling conduct that would cause the costs discretion not to be exercised in its favour; that no issues were improperly or unreasonably raised; that HPPL did not engage in conduct, raise any issues or engage in any argument that unnecessarily increased the length of the hearing (but, rather, acted consistently and reasonably in its position as to sequencing and relief, which position was ultimately vindicated).

Application for costs on indemnity basis

  1. As to HPPL’s submission that costs should be paid on an indemnity basis (invoking s 98(1)(c) of the Civil Procedure Act and r 42.5 of the UCPR), HPPL makes the following submissions.
  2. First, HPPL relies on a letter sent by its solicitors on 13 April 2017, shortly after the commencement of the Oppression Proceeding, to Bianca’s solicitors (a copy of which was in evidence at the hearing of the stay applications) in which HPPL proposed that there be a temporary stay of the proceedings until the determination or other resolution of the Federal Court proceeding (and that questions as to whether the proceedings should be further stayed, including as to whether they should be stayed in favour of arbitration or as an abuse of process, be deferred).
  3. HPPL submits that this was an open and genuine offer of compromise and notes that the principles applicable to Calderbank offers (see Calderbank v Calderbank [1975] 3 All ER 333; 3 WLR 586, at 596-597, per Lord Cairns with whom Scarman LJ and Sir Willmer agreed) have been said to apply to open offers (citing Curtis v Harden Shire Council (No 2) [2015] NSWCA 45 (Curtis v Harden) at [14] (per Bathurst CJ, Beazley P, as Her Excellency then was, and Basten JA). It is submitted that, had HPPL’s proposal been accepted, then none of the costs in question would have been incurred.
  4. HPPL submits that Bianca’s failure to accept that offer was unreasonable. It says that the letter set out in detail why the proceeding was an abuse of process and needed to be stayed in light of the inconsistent claims Bianca had made in other proceedings and the applicable arbitration agreement; and that the letter made clear that Bianca “was in an obvious and intractable position of conflict” if she did not accept HPPL’s proposal. HPPL says that it had repeatedly made clear to Bianca that its directors could not responsibly approve the payment of further dividends (the primary relief sought against HPPL) under s 254T of the Corporations Act 2001 (Cth) given the existence of Bianca’s claims in other proceedings for ownership of the Hope Downs tenements, other tenements, and other HPPL assets. HPPL’s position is that Bianca’s conduct in suing HPPL in other proceedings was in fact the cause of the very conduct claimed in the Oppression Proceeding to be oppressive.
  5. Second, it is said that Bianca’s conduct in opposing the stay sought by HPPL was unreasonable conduct, or “relevant delinquency”, concerning the conduct of the case (in the sense considered in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 (Oshlack) at 89 per Gaudron and Gummow JJ). Reference is made to my observations in the February Judgment as to the continuation of these proceedings being an abuse of process in light of the overlapping issues and inconsistent claims for relief made by her in proceedings in other fora (see [32], [603] of the February Judgment); and it is noted that such an abuse of process may justify an indemnity costs order (citing Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd (2007) 69 NSWLR 374; [2007] NSWCA 57 (Australian Beverage Distributors) at [149] per Beazley JA, as Her Excellency then was; Hodgson and Santow JJA agreeing).
  6. Third, it is said that Bianca engaged in unreasonable conduct or “relevant delinquency” by failing to obtain judicial advice about continuing the proceedings. It is submitted that Bianca’s failure to obtain judicial advice was sufficiently unreasonable so as to justify an indemnity costs award because it involved the breach of an undertaking to the Court that she not “commence or continue proceedings on behalf of the Trust in a court … without the advice of the court” (see Hancock v Rinehart [2015] NSWSC 646 at [383], Order [1](d) per Brereton J, as his Honour was then). It is submitted that the failure to obtain advice to continue the proceeding (noting my observations at [44]-[47] of the February Judgment) was acute given the serious position of conflict in which Bianca placed herself by continuing the proceedings at the same time as pursuing inconsistent claims in the Federal Court and in Western Australia.
  7. Fourth, HPPL points out that Bianca’s resistance to the HPPL Stay Application was not something about which she had “no choice”, and nor did she obtain judicial advice to resist the HPPL Stay Application. Both of these matters are said further to compound the unreasonableness of Bianca’s opposition to the HPPL Stay Application and to militate in favour of an award of costs on an indemnity basis.
  8. Finally, HPPL says that Bianca’s conduct in seeking to agitate the unconscionability application was unreasonable (noting again in this context that there is no suggestion that Bianca obtained judicial advice to do so). It is said that doing so was directly contrary to the High Court’s determination that “[i]t could not have been understood by the parties to these Deeds had any challenge to the efficacy of the Deeds was to be determined in the public spotlight” (Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 93 ALJR 582 (Rinehart v Hancock) at [44], per Kiefel CJ, Gageler, Nettle and Gordon JJ); and it was also directly contrary to the approach taken by Le Miere J in the Supreme Court of Western Australia (Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 10) [2018] WASC 407 (Le Miere (No 10) Decision) at [154]-[160]). HPPL maintains that seeking to have the unconscionability application heard in open court had no reasonable prospects of success.

Application for a forthwith costs order

  1. As to the application that HPPL’s costs should be paid forthwith, HPPL refers to Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432 (Morningstar) at [11]-[13], where Barrett J, as his Honour then was, summarised three principal grounds on which such an order may be made, namely where: the costs order is relevant to a discrete, separately identifiable aspect of the proceedings; there is some unreasonable conduct by the party against whom the costs have been ordered; or it is likely to be a long time before the final disposal of the proceedings.
  2. HPPL maintains that each of those factors is here applicable and that, both separately and collectively, they justify a forthwith costs order.
  3. As to the first of the three principal grounds identified in Morningstar, HPPL submits that the issues raised on its stay application are “generally distinct and separately identifiable” from substantive aspects of the case and (though, having regard to the history of this matter, I am unable to share this optimistic view of the world) unlikely again to arise. It is said that the arbitration questions are discrete questions and that, although the inconsistency in Bianca’s positions is an issue not limited to the present application, the consequence of that inconsistency (namely, a stay) is in substance directed to the HPPL Stay Application. Thus it is submitted that this interlocutory hearing ought relevantly be characterised as a distinct and complete part of the proceeding.
  4. As to the second, HPPL reiterates its position that Bianca’s conduct in maintaining these proceedings, while simultaneously advancing inconsistent positions in other proceedings, was an abuse of process and unreasonable (referring to the February Judgment at [32]). Further, it says that other aspects of Bianca’s conduct of the proceeding were unreasonable and led to an unnecessary increase in hearing time and resources (in particular, service of substantive submissions on the unconscionability application when it was listed only for directions); and the service of “voluminous” material, the vast bulk of which is said not to have been referred to at the hearing (citing Morningstar at [18]).
  5. As to the third, HPPL says that a significant period of time (“most likely several years”) is likely to pass before final disposal of the proceedings, which will only occur after the conclusion of the arbitration.
  6. Reliance is again placed in this context on the 13 April 2017 letter, which sets out what HPPL maintains was the appropriate course to have been taken (and which would have avoided these costs). Hence the application for a forthwith costs order.

Additional costs orders

  1. As to the additional costs orders sought (the costs of the setting aside of the Subpoenas, to which reference has been made above, and the HPPL Notice to Produce), HPPL says the following.
  2. As to the Subpoenas, it is noted that (other than an order in favour of CEF for its costs) costs were reserved. HPPL accepts that it did not apply to set aside the subpoenas. It says that its concern (as summarised in the 2018 Subpoena Judgment at [77]-[82]) was that the subpoenas ought not prejudice or interfere with HPPL’s asserted right to have the dispute (and the production of documents) dealt with in arbitration; and hence it sought to have the subpoenas dealt with after the determination of the HPPL Stay Application or for production only on a confidential basis. It is noted that the subpoenas were in fact set aside, so that it was not necessary to consider HPPL’s arguments. HPPL argues that its position was advanced consistently with, and in support of, the HPPL Stay Application and, therefore, HPPL submits that, as with the costs of that application, Bianca should pay HPPL’s costs of the subpoena hearing on an indemnity basis and forthwith for the same reasons.
  3. As to the notice to produce (the subject of the 2019 Notice to Produce Judgment), the further order that HPPL now seeks is that the costs (which have been ordered already to be paid to it) be payable forthwith, for the reasons set out already in relation to the forthwith costs order that is more generally sought.

Gina’s position

  1. Gina similarly submits that Bianca should pay the defendants’ costs of the proceedings to date on an indemnity basis and forthwith.
  2. The basis on which the costs order is sought in respect of the whole of the proceedings to date (as opposed to the costs of and incidental to the motions that were determined) is that Gina argues that the relevant “event” (for the purposes of r 42.1 of the UCPR, namely the obtaining of a stay of the proceedings) in effect disposed of the other interlocutory motions that were then before the Court (as itemised at [17] of the February Judgment), and also practically disposed of or dealt with all other issues in the proceedings to date. (It appears here to be contemplated that such an order would include the costs of motions that were stayed or not otherwise dealt with on their merits at the time.)
  3. Gina says that, in the alternative, she should have her costs of each of the motions identified at [17] of the February Judgment (save for motions (v) and (vi) which have already been dismissed with no order as to costs – see at [29] of the February Judgment), because, in respect of these motions, to the extent that costs have been incurred they were incurred only because Bianca did not consent to staying these proceedings or to having the motions seeking to stay the proceedings heard first (referring to [18], [20]-[28] of the February Judgment). It is said that if that position had not been taken costs would not have been so incurred.
  4. In respect of Gina’s notice of motion filed 14 August 2018 (seeking an order to refer the disputes between the parties to mediation), it is submitted that it is appropriate to make that order given that I am minded (of my own motion) to make such a referral.
  5. Gina also seeks her costs of the amended notice of motion filed 14 June 2018, seeking orders setting aside the three subpoenas to which reference has been made above (in respect of which costs were reserved until after the hearing of Bianca’s s 247A application, other than in respect of CEF’s costs – see the 2018 Subpoena Judgment at [149]). Gina notes that she was successful in setting aside the bulk of the subpoena served on CEF and in setting aside the bulk of the subpoena served on the IPA (and was wholly successful in setting aside the subpoena to the Hon. Barnaby Joyce MP).
  6. As does HPPL, Gina seeks her costs on an indemnity basis (pursuant to s 98(1)(c) of the Civil Procedure Act and r 42.5 of the UCPR). That application is made for much the same reasons as those put forward by HPPL, namely that, by opposing the stay sought by Gina, Bianca engaged in unreasonable conduct or “relevant delinquency” concerning the conduct of the case (Gina citing not only the authorities referred to above but also Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88 (Coshott v Prentice) at [138] (per Siopis, Katzmann and Perry JJ) and Johnson v Denwest Nominees Pty Ltd [2017] WASCA 200 (Johnson v Denwest Nominees) at [113]-[114] (per Murphy, Mitchell JJA and Pritchard J)). Gina also argues that Bianca engaged in relevant delinquency” by failing to obtain judicial advice to continue the proceedings in light of the applications to stay the proceedings (it being said that the continuation of the proceedings, and the opposition to the applications to stay the proceedings, involved contentions which would (or at least could) adversely impact on the value of the Trust), and by deciding to disavow the Hope Downs Deed (and to adopt a “no choice but to litigate mentality”) without the advice of the court.
  7. Gina similarly argues that pressing for the determination of the “unconscionability motion” before the determination of the respective stay applications was hopeless (on the basis that that position plainly offended the separability principles and was squarely covered by the judicial determinations to which HPPL has referred). It is submitted that Bianca “ought to have known better, given it was not the first time she had engaged in such conduct unsuccessfully”. Gina also argues, in similar vein, that it should have been obvious to Bianca that the proceedings would be stayed given the conflicting positions she was adopting in different fora (submitting that a procedural stay of the proceedings was inevitable, by reference to the matters referred to in the February Judgment at [31]).
  8. Gina places weight on the fact that Bianca did not accede to the proposal put forward by HPPL in its solicitors’ letter dated 13 April 2017 (though it does not appear that Gina herself proffer any such proposal); noting that the proposal was for a stay of the proceedings and that they have now been stayed. As does HPPL, Gina invokes the principles applicable to Calderbank offers (citing not only Curtis v Harden but also ACN 074 971 109 Pty Ltd (as Trustee for the Argot Unit Trust) v The National Mutual Life Association of Australasia Ltd (No 2) [2012] VSC 177 at [32] per Croft J). It is submitted that the 13 April 2017 letter was a genuine offer of compromise and it is said that the failure of Bianca to accept this offer was unreasonable, in light of the comprehensive explanation set out in the letter as to why the proceeding needed to be stayed.
  9. As to the making of an order that these costs be payable forthwith, Gina similarly relies on what was said in, inter aliaMorningstar and Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31 (Pavlovic) at [15] (per Bathurst CJ, Beazley P, as Her Excellency then was, and Meagher JA). It is submitted that, in practical terms, the stay of the proceedings is likely to be the end of the court proceedings, with the dispute to be resolved by arbitration; and that there is still “some considerable distance to go” before the parties’ dispute is finally determined such that it is “appropriate that the successful party obtain the fruits of its costs order now” (as was said in Pavlovic at [15]). It is said that the complaints brought by Bianca will not be stultified by her being required to pay costs forthwith (cf the costs judgment in the Full Court of the Federal Court in Hancock Prospecting Pty Ltd v Rinehart (No 2) [2017] FCAFC 208 at [6], per Allsop CJ, Besanko and O’Callaghan JJ), noting the evidence that Bianca has received substantial dividends over recent years of: $45 million (FY18), $75 million (FY17), $42 million (FY16) and $37 million (FY15). It is submitted that the matters relied on for the making of an indemnity costs order also support the making of a forthwith costs order (referring to Bevillesta Pty Ltd v D Tannous No 2 Pty Ltd [2010] NSWCA 277 at [37]- [39], per McColl JA, Allsop P (as his Honour then was) and Handley AJA agreeing).
  10. Gina additionally seeks an order that the costs which Bianca was ordered to pay in relation to Gina’s successful application to set aside a subpoena to the Commonwealth Bank (see the 2019 Notice to Produce Judgment) now be paid forthwith.

Bianca’s further submissions on costs (and defendants’ responses thereto)

Indemnity costs

  1. As to the defendants’ application for costs on an indemnity basis, Bianca contends that none of the matters relied upon by the defendants warrants the making of such an order. Bianca emphasises that the ordinary rule is for costs to be ordered on the party and party basis (citing Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 at 232; [1993] FCA 801 per Sheppard J); and says that the circumstances of the present case do not meet the test for a special costs order of the kind sought (referring, inter alia, to Sony Computer Entertainment Australia Pty Ltd v Dannoun (No 2) [2001] FCA 1530 at [4], per Lindgren J). (The defendants do not cavil with the former proposition; simply with the latter; in particular that this does not take into account all circumstances where indemnity costs may be ordered.)
  2. As to the matters relied on by HPPL in support of an indemnity costs order (the 13 April 2017 letter; the observations as to an abuse of process; the failure to obtain judicial advice; and HPPL’s other complaints as to the alleged unreasonableness of her conduct), Bianca responds as follows.
  3. First, insofar as reliance is placed on the 13 April 2017 letter, Bianca points out that there is no presumption that, if an offer which is later vindicated in proceedings is rejected, there should be an award of indemnity costs (citing Tati v Stonewall Hotel Pty Ltd (No 2) [2012] NSWCA 124 at [9], per Bathurst CJ; Allsop P, as his Honour then was, and Beazley JA, as Her Excellency then was, agreeing). Bianca also notes that simply because an offer is a “reasonable” one does not meant that its rejection warrants an award of indemnity costs (citing CGU Insurance Limited v Corrections Corporation of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173 at [75], per Moore, Finn and Jessup JJ).
  4. Bianca also notes that the offer was not made by Gina and says that, on its face, it was not sent (or made) to Gina. It is submitted that Bianca’s acceptance of the offer would not itself have achieved anything. In particular, it is said that there is no evidence that Gina was amenable to the proposed offer “despite the fact that she belatedly adopts it in her costs submissions”.
  5. Bianca emphasises that the primary relief proposed in the offer (a stay of the proceedings pending “the determination or other resolution of the Federal Court Proceeding”) is not the relief that was ultimately obtained. (That is hardly surprising, since by the time of the ultimate relief the Federal Court Proceeding had itself been referred to arbitration, the referral/stay motions in that proceeding being the subject of the Full Court Decision and that of the High Court in Rinehart v Hancock.) Bianca says that it was not unreasonable not to consent to a stay pending resolution of the Federal Court proceeding given that it was not known how long those proceedings would run, nor “whether a “temporary stay” was likely to be more in the nature of a “semi- permanent” stay”. Bianca points to the statement in the letter to the effect that HPPL intended “vigorously” to defend the Federal Court proceeding, as suggestive of the label of “temporary stay” being inapt.
  6. Insofar as the offer was predicated on the proposition that there was an inconsistency between the asset claims in the Federal Court proceedings and the complaint about failure to pay dividends in the Oppression Proceeding, Bianca maintains that the offer failed to explain why, even if Bianca’s position in the Federal Court proceedings were to be wholly vindicated, that would mean that HPPL could not pay (and could not have paid) dividends. Indeed, Bianca maintains that HPPL has still not explained why that is so (though to my recollection such an explanation was proffered in the course of submissions on the hearing of the stay applications – including by reference to s 254T of the Corporations Act 2001 (Cth); and see HPPL’s reply submissions below). In any event, Bianca says that there can have been no inconsistency between the Federal Court proceedings and, for example, the s 247A application (and therefore there was no basis for a wholesale stay of the Oppression Proceeding as was proposed by HPPL in the 13 April 2017 letter).
  7. Bianca further maintains that, insofar as the offer proposed a stay in favour of arbitration, it was not unreasonable for her to reject that offer. Bianca notes that, at the time of the offer, the prevailing decision in this jurisdiction on the arbitration agreement was the Court of Appeal Decision (Rinehart v Welker [2012] NSWCA 95; (2012) 95 NSWLR 221); the Full Court decision (Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; [2017] FCAFC 170) not having been handed down until 27 October 2017, more than 6 months after the offer; and the High Court decision (in Rinehart v Hancock) not until 8 May 2019, more than two years after the offer. Bianca says that it is not known how HPPL and Gina’s applications would have been determined had the prevailing position on the arbitration agreement remained as it was at the time of the offer.
  8. Bianca also points to the time provided for acceptance of the offer, noting that the time for which an offer is open has been said to be a highly relevant factor to its reasonableness (and referring, by way of example, to Kiefel v State of Victoria [2014] FCA 411 at [53], per Tracey J; and Keays v JP Morgan Administrative Services Australia Limited [2012] FCAFC 100; (2012) 224 IR 406 at [133]- [135] per Besanko J (Gray J agreeing at [1]; North J agreeing at [7]), where the offer was open for seven days, which was described as “a short period” (at [135])). It is noted that, in the present case, the offer was made at 6:16pm on 13 April 2017 (the day before Good Friday that year) and the offer closed at midday on 19 April 2017; i.e., it was effectively open for acceptance for less than 1½ business days. Bianca says that there was no manifest urgency (in the sense of a pending hearing date) and maintains that it “would be quite extraordinary to make an award of indemnity costs now on the basis of an offer that was open for 1½ days more than two years before the hearing”.
  9. Complaint is also made by Bianca that the offer lacked clarity (noting that in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 it was said (at [24], per Goldberg J) that an offer must be “couched in such terms as enable the offeree to make a carefully considered comparison between the offer made and the ultimate relief it is seeking in all its aspects”). It is noted that the offer did not attach proposed consent orders; that it proposed that questions as to whether there should be a stay pending arbitration be “deferred”, without identifying to when they were to be deferred; and that it did not explain what was to be done as to costs of HPPL’s proceedings to date (nor what was to be done as to Gina’s costs).
  10. Bianca also points to the response that was sent by her solicitors on 19 April 2017, explaining why the proposal was not accepted (a copy of which letter was in evidence on the hearing of the stay applications), and says that the defendants have not addressed that response in their submissions (let alone explained why it was unreasonable).
  11. I interpose here to note that, in reply submissions, while it is not suggested that the time for which an offer is open for acceptance is not relevant to the reasonableness of the offer (or its rejection), both defendants maintain that the complaints here made as to the insufficiency of the period in which the offer was open for acceptance and as to the clarity of its terms should be rejected. HPPL says that the timing of the offer was informed by the matters referred to explicitly or implicitly at paragraphs 41 and 42 of the offer, namely: the pending return date for the statement of claim, and the fact that any request for a stay in aid of a referral to arbitration must be made no later than when submitting the party’s first statement on the substance of the dispute. HPPL says that in these circumstances, the timeframe proposed was reasonable.
  12. In any event, the defendants both point out that Bianca was able to consider (and reject) HPPL’s proposal within the timeframe requested, without seeking any extension of time and with no complaint that the offer was unclear (nor, I might add, any request for its clarification). Gina notes that Bianca rejected the offer on 19 April 2017 (the day it closed), rather than seeking more time and submits that is obvious, from the way that Bianca has conducted herself, that even had the offer been open for more time Bianca would have rejected it and resisted the stay of the proceedings in the manner she did.
  13. As to Bianca’s submission that her acceptance of the offer would not itself have achieved anything (because Gina was not a party to it), HPPL says that this is irrelevant from HPPL’s perspective. Acceptance of the offer would have dealt with the future conduct of the proceedings insofar as they involved HPPL and thus is relevant to HPPL’s costs.
  14. HPPL further says that the fact that the primary relief proposed in the offer was not the relief ultimately obtained in this proceeding is not to the point, noting again that I had made clear (at [603] of the February Judgment) that the grounds for a case management stay were made out and that it would have been granted if a stay in aid of a referral to arbitration had not instead been granted. Thus, HPPL says that even if it was not unreasonable for Ms Rinehart to reject a stay in favour of arbitration, there were no reasonable grounds to oppose a stay of proceedings on case management grounds.
  15. HPPL cavils with the proposition that the offer failed to explain why HPPL could not pay dividends even if Bianca’s position in the Federal Court proceedings was vindicated (pointing to paragraphs 16 and 17 of the offer which HPPL says explained, in clear terms, why dividends could not be paid in light of the inconsistent proceedings). HPPL also points to the explanation it provided in submissions at the hearing of the stay application (as summarised at [554] and [566] of the February Judgment).
  16. HPPL says that Bianca’s response to the 13 April 2017 offer (tellingly) largely ignored the primary basis for HPPL’s proposal (the fundamental inconsistency in her positions) and simply suggested that HPPL could pay dividends in any event (referring to paragraph 7.6 of the 19 April 2017 response). HPPL says that Bianca’s failure to engage meaningfully with the inconsistency (or HPPL’s detailed explanation as to why the inconsistency warranted a stay), renders her response to the offer unreasonable.
  17. Finally, on the offer of compromise issue, Bianca reiterates her submission that there is no basis for an order that Bianca pay the costs of the whole of the proceeding to date (including the costs of the yet to be determined s 247A application) on any basis, let alone on the indemnity basis (see [23]ff above).
  18. As to Bianca’s reply submissions concerning the s 247A application, Gina notes that that application has been stayed because, as put forward, it raised factual matters the subject of the disputes falling under the arbitration clause (referring to [30], [34] of the February Judgment); and says that, therefore, the costs of the “presently formulated” s 247A application should properly be the subject of a costs order.
  19. Secondly, Bianca responds to the reliance placed by the defendants on the observations made by me in the February Judgment on the abuse of process issue. Bianca notes (and this is not and could not be disputed by the defendants) that I found that it was not an abuse of process for Bianca to commence this proceeding (see at [32] of the February Judgment). On that basis, Bianca argues that on no view can the “abuse of process” argument warrant an award of indemnity costs in relation to the whole of the proceedings. It is submitted by Bianca in this context that if (which she clearly does not accept) any abuse of process arose after commencement of the proceeding, it could only justify an award of indemnity costs from the time the abuse of process arose.
  20. Bianca says in this regard that neither Gina nor HPPL has identified any particular time from which they say they should have indemnity costs nor have they identified any step in the proceedings to date which has amounted to an abuse of process. Bianca says that there was no finding that any step in the proceedings to date has involved an abuse of process by Bianca. Rather, it is said that insofar as I concluded that a “continuation of the present proceedings … would amount to an abuse of process” (see at [603] of the February Judgment), this should be understood as the Court acting to prevent an abuse of process before it arises (and it is said that it is not open to seek indemnity costs on the basis that there has been an abuse of process which has never occurred). Emphasis is also placed on the lack of any finding (or suggestion by Gina or HPPL) that the continued maintenance of the present proceedings would be an abuse of process because it would be unjustifiably oppressive to Gina or HPPL.
  21. Bianca argues that the cases referred to in the defendants’ submissions are distinguishable or not analogous; or that they do not stand for any relevant proposition in favour of the defendants’ indemnity costs argument. Bianca distinguishes Australian Beverage Distributors on the basis that the Court of Appeal there hypothesised that costs orders had been made because the trial judge had found an abuse of process; Coshott v Prentice, because the indemnity costs order was made because the applications were “without any merit and represented an attempt to mislead the Court in serious ways” (at [138]); and Johnson v Denwest Nominees, because the indemnity costs were ordered where the proceedings were an abuse of process because they were an oppressive attempt to relitigate that which had been already decided.
  22. In reply submissions on the abuse of process issue, the defendants disavow any proposition that the commencement of the proceeding was an abuse of process but maintain their position that the continuation of the proceedings (i.e., the taking of any further steps in the proceedings while Bianca was prosecuting inconsistent claims in other jurisdictions) was an abuse of process. The defendants say that there was a finding that the continuation of the proceedings was an abuse of process (referring to [32] and [603] of the February Judgment) by way of the continuation of these proceedings.
  23. Gina’s position is that all costs incurred by her arose by reason of Bianca persisting to prosecute these proceedings (resisting the stay applications, insisting that her own motions be heard first or at the same time as those stay motions, pressing her own motions and issuing the Subpoenas (which were set aside on application by the defendants)), and that each and every such step taken by Bianca in continuation of the proceeding constituted an abuse of process. Alternatively, Gina says that the indemnity costs order could be limited to the particular motions identified in [4] of Gina’s costs submissions (filed on 28 February 2020) on the basis that costs in respect of those motions were only incurred because Bianca did not consent to staying these proceedings or to having the motions seeking to stay the proceedings heard first (i.e. they were incurred by the continued maintenance of this proceeding).
  24. Gina maintains that on a proper reading of [603] of the February Judgment, there was in fact a finding that Bianca’s conduct amounted to an abuse of process because of the overlapping issues and inconsistent claims for relief, premised on inconsistent positions raised in different capacities (referring also to the use of the present tense in the finding [32] of the February Judgment; and to the observations I made at [45] of the February Judgment), pointing out that the reference there to the “inconsistency argument” is a reference to the abuse of process which Gina says was ultimately found.
  25. As to the lack of an express finding that continued maintenance of the proceedings would be an abuse of process because it would be “unjustifiably oppressive to Gina or HPPL”, Gina says Bianca’s submission is premised on a mistaken view of the circumstances in which indemnity costs will be ordered. In any event, it ignores what was said at [45] of the February Judgment, and the recognition (at [588] of the February Judgment) of the prima facie vexation or oppression that arises from overlapping or inconsistent proceedings (see Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 at 591, per Dawson, Gaudron, McHugh, and Gummow JJ; [1996] HCA 51); and the delay and increased costs which will arise if Bianca were permitted to continue with this proceeding (see [594] and [601]-[602] of the February Judgment).
  26. Insofar as Bianca seeks to distinguish them on the facts, Gina says she relies on the principle contained in Australian Beverage DistributorsCoshott v Prentice, and Johnson v Denwest Nominees that an abuse of process is sufficient to engage the broad discretion to order indemnity costs.
  27. Similarly, HPPL says that there was a finding of abuse of process (at [32] of the February Judgment) and that the taking of any step beyond the filing of the statement of claim (or requiring HPPL to take any step in response to the statement of claim) gave rise to the abuse of process.
  28. Turning then, thirdly, to the defendants’ contention that Bianca engaged in delinquency by failing to obtain judicial advice to continue the proceedings, Bianca takes issue with the suggestion (raised for the first time in costs submissions) that there has been a breach of the undertaking given to the Court and recorded in Hancock v Rinehart [2015] NSWSC 646 at [383] (1(d)). Bianca says that such a finding would amount to a contempt of court (which would undeniably be a serious finding to make) and says that such a finding is not one that can fairly be made in the present circumstances.
  29. In this regard, Bianca says that there is no basis for any contention (express or oblique) that Rein J was not made aware of the potential applicability of the arbitration agreement and the potential for a referral/stay application to be made on that basis; and that to assert non-disclosure of material facts by experienced counsel and solicitors is a serious assertion, which should not be entertained. It is said that unless it is established that Rein J was not made aware of the risk that Gina or HPPL would seek to have the matter referred to arbitration, Bianca should not be criticised for not seeking further advice if and when that risk eventuated.
  30. Pausing here, there is to my mind a distinction between a suggestion that there was a non-disclosure of material facts to Rein J on the judicial advice application (which I emphasise is a suggestion that has neither been made in the present case nor supported on the evidence) and a submission that judicial advice should have been sought at a later stage when a decision was made by Bianca to resist an application for a referral to arbitration or stay of the proceedings. There was, and is, no suggestion that Rein J was misled as to any material facts on the judicial advice application. However, the fact remains that the advice that Bianca obtained that she was justified in commencing the proceeding did not in its terms include (not does it appear implicitly to encompass) advice that Bianca was or would be justified in resisting an application for the referral of the proceeding to arbitration (were such an application subsequently to be made).
  31. Returning to Bianca’s reply submissions on this issue, Bianca also submits that Gina’s construction of the undertaking given to the Brereton J is artificial. It is said that, read fairly and in context, Bianca’s undertaking that she would “not commence or continue proceedings on behalf of the Trust in a court” refers to the commencement of new proceedings and the continuation of proceedings brought by or against the HMH Trust that were in existence at the time of Bianca’s appointment as trustee. It is said that, if it were otherwise, the undertaking would be inherently ambiguous as it would be impracticable (if not impossible) to determine, upon pain of a finding of contempt, when a proceeding that had been commenced with judicial advice should be taken to be “continued” in a manner that required a further judicial advice application before a further step could be taken. It is submitted that the undertaking should not be construed in such a fashion in the absence of the clearest words.
  32. Further, Bianca submits that a focus by Gina and HPPL on questions of compliance with judicial advice is misdirected since costs are compensatory, not punitive (citing Northern Territory of Australia v Sangare [2019] HCA 25; (2019) 93 ALJR 959 at [30] per Kiefel CJ, Bell, Gageler, Keane, and Nettle JJ). It is said that it is no part of the Court’s function to award indemnity costs in order to punish Bianca for an asserted breach of the undertaking, even if such a breach could be proved.
  33. Responding to Bianca’s reply submissions as to the delinquency said to have arisen from the failure to obtain judicial advice to continue the proceedings, Gina’s position is that her construction of the undertaking (that judicial advice would be received before commencing and maintaining proceedings on behalf of the HMH Trust), is consistent with the important differences between commencing proceedings and maintaining them (referring to [32], [44] and [603] the February Judgment) and with the fact that Rein J approved the commencement of this proceeding but expressly reserved the question of where the proceedings should ultimately be maintained in light of the various other disputes (see Bianca Hope Rinehart as trustee of The Hope Margaret Hancock Trust [2017] NSWSC 282 at [40]).
  34. Gina says that the relevant delinquency is the failure to obtain judicial advice, in light of the undertaking; and that this does not amount to a finding of contempt (which, it is noted, involves a finding of deliberate or contumacious defiance with Court orders, citing Witham v Holloway (1995) 183 CLR 525 at 530, per Brennan, Dean, Toohey, and Gaudron JJ; [1995] HCA 3). Gina emphasises that any finding as to breach of the undertaking would be a finding on an interlocutory application for costs.
  35. In any event, regardless of the applicability of the terms of the undertaking Bianca provided, Gina’s complaint is that Bianca has failed to explain why she did not obtain judicial advice concerning the continuation of these proceedings “in the face of the referral/stay motions and in light of her competing personal claims”. Gina says Bianca also has failed to establish that any consideration was given to whether the proceedings should be maintained at the time the judicial advice application was made (reference being made in this context to what I said in the February Judgment at [46]; and the observations there made at [44], which it is not necessary here to repeat). It is suggested that Bianca’s failure to put on evidence as to the matters to which reference was made at [44] of the February Judgment (as to whether particular matters were raised before his Honour on the judicial advice application) may give rise to a relevant inference.
  36. As to the complaint that indemnity costs would be punitive, Gina says that the indemnity costs are not sought to punish Bianca for her misconduct but, rather, to compensate the defendants for having incurred costs as a result of Bianca’s delinquency (again citing Oshlack).
  37. As to the alleged delinquency on the part of Bianca concerning the pursuit of the unconscionability motion, Gina accepts that this could only justify indemnity costs incurred in relation to that motion (including the application to have that motion referred to arbitration). Gina submits that the unconscionability motion obviously came within the scope of the High Court’s finding concerning challenges to the efficacy of the Hope Downs Deed (citing Rinehart v Hancock at [43]-[44]) and says that there was therefore no issue as to whether the “governed or controlled” test had been overruled in that respect, because it was directly covered by what the High Court held. Gina maintains that this disposes of Bianca’s submission as to why pressing the unconscionability motion before the stay motion had been determined was not hopeless in light of the High Court’s finding at [44]. As to Bianca’s submissions concerning whether it was obvious that the proceedings would be stayed, Gina says that these merely reassert the arguments she made during the hearing (and points to the findings made at [31] and [603] of the February Judgment).
  38. On the breach of undertaking issue, HPPL argues first that the mere fact that a breach of an undertaking is serious and has not been expressly raised before in the substantive proceeding is not a reason to disregard it on the question of costs. Second, HPPL says that it is unremarkable that a party’s conduct of the proceedings will only be ventilated for the first time on a costs argument (as the conduct will often be irrelevant to the substantive relief). Third, and finally, HPPL argues that, in any event, Bianca has had an opportunity to respond to HPPL’s submission that she breached the undertaking; that she did not deny it; and that she elected not to respond to its substance. HPPL says that in these circumstances, having regard to the breach of undertaking on the question of costs cannot be said to be unfair.
  39. HPPL says that its submission as to the failure to obtain judicial advice is not as to whether Rein J was informed about the arbitration agreement and the potential for a stay application (though HPPL says that there is no evidence that this occurred); rather, its position is that Bianca resisted the stay application and sought to challenge the Hope Downs Deed in these proceedings without seeking judicial advice to do so. HPPL says that it is clear from his Honour’s reasons that Rein J gave no such advice and that Bianca can be criticised in these circumstances because her failure to obtain judicial advice breached the undertaking she gave to Brereton J.
  40. Like Gina, HPPL says its application for indemnity costs is not seeking costs on a punitive basis. Rather, HPPL says that it was required to take steps and incur costs in this proceeding which, in HPPL’s submission, almost certainly would have been avoided had Bianca sought judicial advice as to this aspect of the matter (because Bianca was unlikely to obtain judicial advice to continue this proceeding while maintaining inconsistent claims in other jurisdictions); and therefore it seeks orders to compensate it for costs that, in its submission, it should never have had to incur.
  41. Turning to the next argument to which Bianca responded in reply submissions (the submission that the unconscionability application was hopeless and/or unreasonably pursued, with the result that indemnity costs should be awarded), Bianca says that, at most, the contention could touch only costs incurred in dealing with the unconscionability application (which she notes “was itself only listed for directions”, and did not involve any evidence on the part of Gina or HPPL), and that this could not warrant a general indemnity costs order.
  42. Pausing here, HPPL argues that Bianca’s acceptance in these submissions that the unconscionability application was only listed for directions is a sufficient basis for the conclusion that it was unreasonable for Bianca “to waste the parties’ time and resources in nevertheless seeking to agitate the application”.
  43. Bianca submits, further, that she should not be criticised for pursuing the unconscionability application in circumstances where Le Miere J had found that a similar (but not identical) argument offended the separability principle (referring to the Le Miere (No 10) Decision). It is noted that that application had been brought by Bianca in her personal capacity and that Le Miere J’s judgment was under appeal. It is said that that appeal, if successful, would not have “undone” a referral to arbitration in these proceedings made in the face of Bianca not taking the unconscionability point. Bianca says that had she not taken the point, Gina and HPPL might very well have later submitted that she should was subject to an Anshun estoppel (see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 602-604, per Gibbs CJ, Mason and Aickin JJ; [1981] HCA 45) or should otherwise have been precluded from arguing the point on a later occasion.
  44. To this, HPPL says that the contention by Bianca that it is not unreasonable for her to repeatedly press materially the same unsuccessful argument in different courts should be rejected. HPPL maintains that it is plain, given the authorities referred to in its earlier submissions, that the unconscionability application had no reasonable prospects of success. In particular, HPPL says that “[r]ecycling a failed argument with no reasonable prospects of success is precisely the kind of unreasonable conduct that should sound in an award of indemnity costs”.
  45. As to the submission that the unconscionability motion was contrary to the separability principle (as held at [636] of the February Judgment) and was covered by the High Court decision in Rinehart v Hancock at [44] (as to which Bianca says there was not an express finding in the February Judgment), Bianca submits that, at best, that is a submission that Gina and HPPL’s arguments were found to be persuasive. Bianca says that it does not mean that it was unreasonable for Bianca to put a different position; nor, a fortiori, does it mean that it was so unreasonable for Bianca to put such an argument that an award of indemnity costs is now justified. Further, it is said that to submit that the unconscionability motion was squarely covered by the High Court decision so as to make it unreasonable to put any different approach fails to take account of the (reasoned) debate before me as to how the High Court’s decision in Rinehart v Hancock sat with the Court of Appeal’s decision on the meaning and scope of the arbitration agreement.
  46. Bianca says that the submission that “it should have been obvious” that the proceedings would be stayed “given the conflicting positions [Bianca] was adopting in different fora” also rises no higher than a submission that Gina and HPPL’s submissions on inconsistency were ultimately accepted by the Court. It is said that there was nothing unreasonable in Bianca submitting: that any inconsistency would arise only at the time of judgment, and should not prevent (at least) the filing of a defence and the service of evidence by Bianca; that HPPL had not established that it had insufficient funds available to declare dividends to the trust even if the Federal Court “asset” claims were resolved wholly against HPPL; and that the Court’s remedial armoury in a breach of trust and oppression suit was sufficiently flexible to ensure that there would be no double recovery (and it is noted that I did not reject any of these submissions).
  47. Finally, insofar as HPPL refers to the “no choice [but] to bring the current proceedings as trustee” submission, Bianca says that this is not relevant to the present issue; emphasising that Bianca obtained judicial advice that she was justified in commencing the present proceeding.
  48. In answer to the above argument, HPPL says that it did not say that indemnity costs should be awarded because Bianca submitted that she had no choice to bring the current proceedings as trustee; rather, that HPPL’s point is that Bianca did have a choice as to whether to oppose the stay application. HPPL says that Bianca’s submission that she was duty bound as a trustee to bring this proceeding is irrelevant in determining whether her decision to resist the stay application was reasonable.

Forthwith costs order

  1. As to the application for a forthwith costs order, Bianca says that there is no sufficient reason here to “order otherwise” than as provided under the UCPR (see rr 42.7(1) and (2) of the UCPR).
  2. Bianca says that Gina and HPPL do not assert some special cash flow need to obtain their costs now (and says that having regard to their financial resources, they could hardly do so). Bianca maintains her position that there is no unreasonable conduct on her part which would justify such an order. Further, it is said that it is a matter of speculation as to how long the arbitration will go (noting that no findings have been made on that issue).
  3. Bianca also says that the applications determined on 14 February 2020 are not readily characterised as “discreet, separately identifiable aspect[s]” of the proceedings, referring to the fact that the s 247A application remains alive. It is said that this can be said of “virtually any interlocutory application” and should not alone justify the orders sought.
  4. It is submitted that it would be unjust for Gina and HPPL to obtain their costs immediately; and that a number of their arguments were accepted only on a prima facie basis, to be finally determined by the arbitrator (referring, in particular, the arguments as to “party” addressed at [197]-[200] of the February Judgment). It is submitted that Gina and HPPL are effectively seeking their costs now for work that they would otherwise have had to do to put the arguments before the arbitrator, and which they might ultimately lose before the arbitrator.
  5. HPPL argues that the above submissions for Bianca wrongly conflate the stay applications with the underlying proceedings which are the subject of the stays. HPPL says that the fact that it made submissions on certain factual matters on a prima facie basis, which will be addressed on a final basis at arbitration, does not detract from HPPL’s success on those issues on these particular applications.
  6. Finally, Bianca points to the position taken by the Full Federal Court on a similar forthwith costs application by Gina and HPPL (see Hancock Prospecting Pty Ltd v Rinehart (No 2) [2017] FCAFC 208). It is noted that the Full Court rejected such an application, Allsop CJ, Besanko, and O’Callaghan JJ saying (at [6]):

… there is no reason why in justice these costs should be paid forthwith. The costs will be large. That is a result of how both sides have treated the applications. With some exception in oral address, no stone has been left unturned, no opportunity for opposition passed up, and no proposition in writing expressed otherwise than to the fullest. Should the costs be payable forthwith that would raise the real risk of stultification of the substantive complaints of the first and second respondents to the appeal. That would be a matter of some real injustice. If the first and second respondents’ complaints are legitimate (whether to be vindicated in an arbitration or court proceeding) they would amount to very serious wrongs.

[Emphasis in the original]

  1. It is submitted that there is no reason here to adopt a different approach. Bianca says that all parties have approached this litigation in substantially the same manner as was described by the Full Federal Court; that the costs will inevitably be large and that a payable forthwith order raises a real risk of stultification of the substantive complaints which would be productive of injustice. Further, it is said that if Bianca’s corporate governance and oppression complaints are legitimate (whether to be vindicated in arbitration or in court proceedings) they would amount to very serious wrongs.
  2. HPPL says that there are two material differences between the position here and the position considered in the costs decision of the Full Federal Court. First, HPPL notes that Bianca was a party to the Federal Court proceeding in her personal capacity whereas here, she is a plaintiff in her capacity as the trustee of the HMH Trust (with, it is said, extraordinarily valuable revenue streams and assets). HPPL says that there is no suggestion that Bianca is not being indemnified from the HMH Trust assets. Second, HPPL says that there is no evidence before this Court of a risk of stultification of the proceedings and no evidential foundation for such a submission. In particular, it is said that there is no evidence that the HMH Trust is unable to indemnify Bianca for her costs of this proceeding.
  3. Similarly, Gina says that Bianca does not assert that a forthwith order would result in stultification of the proceedings and has not addressed the evidence identified in Gina’s 28 February 2020 costs submissions as to the dividends received by Bianca in FY15-FY18. Gina says that there can be no risk of stultification as a result of the costs order being paid forthwith, so that the approach of the Full Federal Court is inapplicable (and says that the fact that Bianca has now filed a notice of intention to appeal demonstrates that there is no risk of stultification).
  4. Gina further says that: there is no principle that a defendant must have a “cash flow need” to obtain a forthwith order; it is patently clear, not speculation, that the various arbitrations have “some considerable distance to go” (noting that Bianca’s counsel accepted during the hearing of the stay applications the proposition that the determination of the arbitral proceedings would be “years away” (see T 321.5-6; T 322.38)); and that the costs to date have been associated with preliminary but discrete, and separately identifiable aspects. Further, it is said that even if this application was not discrete, it would be only a reason not to make costs payable forthwith concerning it, but not as to the balance of the motions. Gina further submits that the s 247A application, as presently formulated, is discrete from any isolated s 247A application which may be made in the future in this proceeding.
  5. Gina also says that there is no injustice by reason of the First Defendant’s arguments having only been accepted on a prima facie basis, noting that that was the relevant threshold. Gina says it cannot be the case that the costs incurred on these motions would have been incurred in arbitration in any event, since the focus of the stay hearings was not upon the merits of the underlying claims, as it will be before the arbitrators (and says, further, that those arbitrators will be responsible for the appropriate costs orders following determination).

Other costs issues

  1. Insofar as Gina and HPPL seeks costs in relation to Gina’s application to set aside the three Subpoenas determined on 17 July 2018 in Rinehart v Rinehart [2018] NSWSC 1102 (the 2018 Subpoena Judgment), Bianca points to the fact that I had previously concluded that costs on that issue “should be reserved until after the hearing of the s 247A application” (see 2018 Subpoena Judgment at [149]). Bianca again notes that the s 247A application has not been heard or determined; and says that neither Gina nor HPPL has identified any reason why he or it “should be entitled to re-litigate” that conclusion.
  2. Bianca says that, in any event, HPPL should not have its costs in relation to the Subpoenas determined in the 2018 Subpoena Judgment, noting that: HPPL did not apply to set aside the Subpoenas; and that HPPL’s contentions in respect of those subpoenas were not determined. It is submitted that there is therefore no “event” which costs can follow. (So far as HPPL contends that it should have those costs on an indemnity basis, Bianca says that that contention should be rejected for the same reasons as put forward in response to HPPL’s general application for indemnity costs.)
  3. Gina’s position is that at the time that the costs of the applications to set aside the Subpoenas the subject of the 2018 Subpoena Judgment were reserved the s 247A application was to be heard along with the stay motions (see Rinehart atf The Hope Margaret Hancock Trust v Rinehart [2017] NSWSC 803). Gina submits that given the change in circumstances the reserved costs should be dealt with now. Similarly, HPPL says that circumstances have changed, noting that the costs in question were reserved at a time when the s 247A Application was set down for hearing. HPPL says that the s 247A Application is unlikely to ever be heard “at least in the same form in which it was stayed”, because of the likelihood that similar relief may be sought from an arbitrator; and that in those circumstances, it is appropriate that the question as to the reserved costs should now be revisited.

Determination

  1. As already noted, there is no issue raised by Bianca as to the making of an order for costs (on the ordinary basis) in respect of the motions that were determined on 14 February 2020 on the basis of the usual order that costs follow the event (see r 42.1 of the UCPR).
  2. Two issues have arisen as to the ambit of such an order: first, whether (as Bianca contends) there should be a “carve-out” for costs referable to the s 247A application that has not yet been determined (and has simply been stayed pending the outcome of the arbitration); and, second, whether (as Gina contends) the order should be an order for the whole of the proceedings to date (on the basis that the relief granted has practically disposed of all extant issues in the proceedings), or should encompass certain of the interlocutory motions that were not dealt with on their merits (such as the unconscionability motion).
  3. As to the second of those issues, I do not consider that an order for costs in respect of the whole of the proceedings to date is warranted. Presumably some costs will have been incurred in the proceedings by the defendants to date that relate to the substance of the dispute not to the interlocutory motions as such (say, for example, in a review of the pleaded claims for the purpose, if nothing else, of advising as to the scope of the proceedings and, perhaps, in preparation for a defence of the proceedings). I see no basis for an assumption that all of the costs incurred to date are costs of, or incidental to, the particular interlocutory motions that were the subject of the hearing and determination before me in July last year. That said, I accept that the costs of the interlocutory hearings in 2017 and 2018 are properly characterised as (or predominantly as) costs of, or incidental to, the costs of the respective stay applications. Debates going to the sequence in which the respective motions were to be heard, for example, largely turned on the stay applications.
  4. Nor do I consider that costs orders should be made in relation to motions that were either before me only for directions and have now been stayed (the unconscionability motion) or were listed before me but not the subject of a hearing on the merits (the mediation motion). As to the mediation motion, even though the same result has now been achieved as was sought by that motion, it has been of the Court’s own motion. Moreover, it is difficult to see that much in the way of separate costs (other than the preparation and filing of the motion) would have been incurred in relation to that motion, since the focus of the hearing(s) to date was on other matters (in particular, the stay applications).
  5. Therefore I propose to confine the costs orders to costs of, and incidental to, the particular motions that were determined by me. If there is a dispute as to whether aspects of the sequencing debate are properly to be regarded as incidental to the respective stay applications (notwithstanding the observations I have made above), that can be dealt with in due course on a costs assessment.
  6. The more difficult issue is the first of the above two issues, namely as to the carve out sought in respect of costs incurred in relation to Bianca’s s 247A application. For the reasons set out in the February Judgment, I did not refer that application to arbitration. I concluded that Bianca’s s 247A application, though arbitrable, was not per se a dispute caught by cl 20 of the Hope Downs Deed and thus was not required to be referred to arbitration. Therefore, it has not yet been determined on its merits and, indeed, I contemplated that there might be particular, limited categories of documents required by Bianca for the purpose of her administration of the HMH Trust as its trustee (other than for the purposes of the prosecution of the claims the subject of the Oppression Proceeding and hence unconnected to the dispute the subject of the matters that I was contemplating would then be referred to arbitration), such that I was not prepared to rule out the possibility of entertaining a discrete s 247A application even pending the determination of the arbitration.
  7. But for the qualification I make below, I consider that there would be force to Bianca’s submission that the appropriate order would be to carve out of the costs order costs referable to preparation for the s 247A application (that has not yet been heard).
  8. The qualification I make is that, notwithstanding that I did not refer Bianca’s s 247A application to arbitration with the balance of the matters in dispute in the proceedings, I did consider that it should be stayed pending determination of the arbitration (because the hearing of that application is likely to involve a public airing of the matters the subject of the bargained-for confidentiality and, to the extent that the documents sought are relevant to the matters to be referred to arbitration, it would be open to Bianca to seek production of documents in the context of the arbitration). Therefore, albeit for a somewhat different reason, perhaps, HPPL and Gina did succeed in persuading me that the s 247A application should not now be heard.
  9. Both HPPL and Gina made very clear at all stages in the various sequencing debates their position that the s 247A application should not be heard at this stage (albeit that their principal contention was that it should be referred to arbitration). To the extent that Bianca pressed for it to be heard and proceeded to serve material or take other steps in aid of that application, which then caused the defendants to incur costs against the possibility that Bianca would be successful in persuading me to proceed to determine it, it seems to me that Bianca should bear the costs consequences of that forensic decision. I am fortified in that view by the 13 April 2017 letter. Bianca was well and truly on notice, from a very early stage of these proceedings, of the contention by HPPL that it was inappropriate to continue with the proceedings pending the resolution of the Federal Court proceedings (and/or other curial or arbitral proceedings) and, further, that questions would or were likely to arise as to issues of abuse of process or the like as a result of the perceived inconsistency in Bianca’s position (as well as the potential for an application to stay the proceedings for a referral to arbitration).
  10. Moreover, although it was not necessary (in light of my other findings) separately to determine the application for a stay of the proceedings on the alternative bases put forward (being the stay on the grounds of case management principles or, alternatively, as an abuse of process), I was of the view that a stay on those bases would have been warranted (see at [31]-[32] of the February Judgment). Therefore, had the outcome of the interlocutory motions turned on those issues, the result would still have been in Gina and HPPL’s favour in that the proceedings would have been stayed on those bases (and the s 247A application would still remain yet to be determined).
  11. In those circumstances, I do not consider that a “carve-out” from the overall costs orders is warranted in respect of costs incurred in relation to the s 247A application at least so far as those costs can be characterised as being incurred incidental to the preparation for and hearing of the respective stay applications. To that extent, the costs order in favour of the defendants should encompass those costs.
  12. The two further issues that have been raised in relation to costs are: first, the basis on which any costs order(s) should be made (i.e., whether on an indemnity or party and party basis) and, second, the time when such costs should be payable (i.e., whether the costs should be payable forthwith).
  13. As to the claim for the costs orders to be on an indemnity basis, I accept that on one view HPPL and Gina are here in a different position because the 13 April 2017 letter on which HPPL relies was not an offer put forward (nor, at least so far as I can see, adopted) by Gina. A party seeking to invoke the Calderbank principles would ordinarily be the party who made the relevant offer (not another party seeking in hindsight to take the benefit of the making and non-acceptance of that offer). Certainly, I was not taken to any authority in which a party who did not make the relevant offer nevertheless obtained a special costs order by reference to such an offer. However, it is not ultimately necessary to determine this (some might say esoteric) issue because of the conclusion I have reached as to the other bases on which the claim for indemnity costs is put by Gina (see below).
  14. As to HPPL, and the application of the Calderbank principles to the offer that it made, I consider that there is force to the submission that it was unreasonable for Bianca not to accede to the proposed stay (or at the very least not to do so without judicial advice that she would be justified in resisting an application for a stay or for a referral to arbitration). I have referred in my earlier reasons to the striking overlap between the issues and inconsistency in the claims for relief made by Bianca (albeit in different capacities) in different proceedings and in different fora. In Commonwealth of Australia v Gretton [2008] NSWCA 117, Beazley JA, as Her Excellency then was, noted the public policy considerations that underpin the making of favourable costs orders where a Calderbank offer has been made (see at [41], quoting from Leichhardt Municipal Council v Green [2004] NSWCA 341 at [14] per Santow JA), those being the encouragement of settlement of disputes as soon as possible and the discouragement of wasteful and unreasonable behaviour by litigants. Those considerations are manifestly applicable in the present case. Having regard to those factors, the non-acceptance by Bianca of HPPL’s proposal for a stay of the Oppression Proceeding would, in my opinion, subject to the matters referred to below, warrant the making of indemnity costs orders in relation to HPPL’s Stay Application.
  15. It is however relevant to consider the timing of the offer and its terms, i.e., to consider whether it was not unreasonable for Bianca not to accept the offer based on the time available for its acceptance (which was indeed a short period) and/or on the basis of the complained lack of clarity in the terms of the offer. As to the former, effectively the offer allowed less than a week because of the intervening public holidays. However, it was not suggested at the time that Bianca was incapable of considering or dealing with the offer in that time frame. As to the latter, no complaint as to the clarity of the terms there proposed was raised at the time. Therefore, I would not conclude that for those reasons it was not unreasonable for Bianca not to accept the offer.
  16. Relevantly, however, insofar as the offer was predicated on the Court of Appeal’s construction of the arbitration clause being incorrect, at the time the offer was made there was a judgment binding on any first instance judge in this Court as to the construction of the relevant clause. Bianca cannot be criticised for proceeding on the assumption that that construction would be correct.
  17. On balance, therefore, I would not conclude that it was unreasonable for Bianca to have rejected the offer at the time that she did.
  18. As to the other bases on which indemnity costs are sought, my view (as I explained in the February Judgment) is that, although justified in commencing the proceedings, there is and would be an abuse of process in the vexing of the defendants (and particularly, in this case, HPPL) by the maintenance of inconsistent claims across different jurisdictions. Once that became apparent (as, in my opinion, it must have done at a very early stage – and certainly once this was drawn explicitly to Bianca’s attention in the 13 April 2017 letter), the continuation of the proceedings certainly bore the hallmarks of an abuse of process (see, for example, UBS AG v Tyne [2018] HCA 45; (2018) 92 ALJR 968; 360 ALR 184 (UBS AG v Tyne) at [1] per Kiefel CJ, Bell and Keane JJ; and see [591]-[592]ff of the February Judgment).
  19. Relevantly, at [603] of the February Judgment I said:

603. I have concluded that case management principles would have coupled with the stay of the proceedings even if the disputes had not been covered by the arbitration clause by reason of the fundamental inconsistency in the maintenance of the two claims as to the beneficial ownership of the mining tenements assets. From a case management perspective, it is inefficient and raises the spectre of inconsistent judgments to have these matters dealt with in different places before different decision-makers. I accept that there is not one single matter but I also accept that there is a marked degree of interconnectedness (or interconnectivity) in the respective allegations. Whether or not this is “all about the dividends”, as was put to me, there is little doubt that issues relating to the payment of dividends are squarely raised in the pleadings by Bianca and that this will give rise to submissions made on the basis of inconsistency with provisions of the Hope Downs Deed. The fact that a court might be unlikely to grant certain of the relief, or that reliance on certain clauses might ultimately be found to be against public policy or the like, is not to the point – what is relevant is that it is abundantly clear that the defendants will be relying on provisions of the Hope Downs Deed in their defence of the allegations made against them; and that exploring the issues so raised will involve disputes as to the provisions of the Hope Downs Deed. Moreover, I consider this continuation of the present proceedings involving overlapping issues and inconsistent claims for relief (and premised on inconsistent positions albeit raised in different capacities) would amount to an abuse of process. [Emphasis added]

  1. If it was not abundantly clear from the February Judgment that I was of the view that it would be an abuse of process for Bianca to continue the proceedings at that stage and that the spectre of such an abuse of process arose at the time that the inconsistency between, and multiplicity of, proceedings involving overlapping claims became apparent. In that sense, while it may not have been an abuse of process, as such, to resist the application for a stay (insofar as there was a reasonable argument to be put forward against the requirement for such a stay under the Commercial Arbitration legislation – see the Commercial Arbitration Act 2010 (NSW); Commercial Arbitration Act 2012 (WA)), to allow Bianca to press on with those overlapping and inconsistent claims would have been in my opinion to condone an abuse of process. The precise point at which such an abuse of process might be said to have arisen does not seem to me to be material in circumstances where the costs orders are made in relation to the respective Stay Applications (not the proceedings as a whole). What is relevant is that, as from 13 April 2017 Bianca was on notice of the concerns that had been raised in that regard and chose to proceed with the matter (and, relevantly, to resist the applications for a stay) regardless of the potential abuse of process.
  2. I consider that, at the time of the 13 April 2017 letter (if not indeed before, having regard to the undertaking to which the defendants have referred), and at the latest when the Full Federal Court Decision and High Court Decision were handed down, it was incumbent on Bianca as trustee (if she wished to be protected from adverse costs consequences of this kind) to seek judicial advice as to whether she was justified in continuing to resist a referral to arbitration or in refusing to accede to a temporary stay of the proceedings.
  3. It is not necessary (nor is it appropriate in the absence of an opportunity for Bianca to be heard on this particular issue) to delve into the question whether such conduct involved any breach of an undertaking to the Court. In this regard, it sufficies to point to the authorities which make clear the need for trustees to consider the making of appropriate judicial advice applications before incurring costs as a trustee in litigation – see, in particular, Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42, where the High Court said (at [72]) that:

72. It is, therefore, not right to see a trustee’s application for judicial advice about whether to sue or defend proceedings as directed only to the personal protection of the trustee. Proceedings for judicial advice have another and no less important purpose of protecting the interests of the trust.

  1. See also Bovaird v Frost [2009] NSWSC 917, where Brereton J, as his Honour then was, noted (at [32]) that it was both desirable and prudent for trustees promptly to obtain judicial advice as to possible proceedings lest it otherwise be suggested that the trustees “have been gambling with money that is not their own”.
  2. True it is that there was a basis on which a reasoned argument could be (and was) maintained to support the resistance to the respective stay applications (and it was not until a later point in the course of the proceedings that the inconsistency between the Court of Appeal Decision and the Full Federal Court Decision emerged). However, at all relevant times, there were overlapping and inconsistent claims in multiple fora; and, ultimately, whatever the outcome of the Commercial Arbitration stay argument, there were obvious case management and other grounds to warrant a stay of the proceedings.
  3. I accept that the making of indemnity costs orders is not intended to be punitive; but I see such an order in this case not as punitive but as intended to reflect the unreasonableness or delinquency in conduct on Bianca’s part, for which the defendants should be compensated.
  4. As to the submissions to the effect that the unconscionability motion (which I emphasise has not yet been heard on its merits despite the debate as to the sequencing of and basis for that motion during the course of the hearing of the stay applications) was hopeless on its face or had no reasonable prospects for success, I would not go so far as to say that. However, its belated appearance in the array of interlocutory motions and, more significantly, its appearance after the dismissal of an almost identical motion in the Western Australian proceedings, reinforces my concern as to the stance here adopted by Bianca in resisting the referral to arbitration and/or stay of the present proceeding (particularly without having sought judicial advice as to whether she was justified in so doing). In the February Judgment I noted my concerns as to the same issues and factual disputes being raised across a variety of jurisdictions and proceedings. That remains my very real concern.
  5. What amounts to unreasonable conduct in the context of costs applications (albeit in a different context) has been considered in Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624-625 per McHugh J; [1997] HCA 6 (Lai Qin)). His Honour there said that:

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. [Citations omitted]

  1. Elsewhere (see Renton v Kelly [2018] NSWSC 1377 at [56], Baller Industries Pty Ltd v Mero Mero Leasing Pty Ltd [2019] NSWSC 1067 at [19]- [20]), I have noted that the use of the word “so” in the above passage indicates a level of unreasonableness which is established by the circumstances in which the costs were incurred. It is also relevant here again to emphasise the overriding mandate in respect of the conduct of litigation in this Court (see s 56 of the Civil Procedure Act) is for the just, quick and cheap resolution of the real issues in dispute. The proliferation of disputes across the country raising overlapping issues, coupled with the resistance to the referral of the present disputes to arbitration in circumstances where elsewhere the same or very similar disputes have already been referred to arbitration (and against the background emphasised by the High Court in its decision in relation to the very same arbitration agreement the subject of the present stay applications – Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; 93 ALJR 582), is in my opinion “so unreasonable”, in the sense considered in Lai Qin, as to warrant an indemnity costs order in relation to the respective stay applications.
  2. For those reasons I have concluded that it is appropriate to order that the costs of, and incidental to, the respective stay applications be borne by Bianca on the indemnity basis.
  3. As to the application for orders that the costs be payable forthwith, as noted above the relevant principles have been stated in Morningstar and are well known (see, for example, Sayour v Elliott (No 2) [2018] NSWSC 146 at [44]). In the present case, I am persuaded that such an order is appropriate, because of the likely delay in the overall disposition of the substantive disputes in the proceedings. I accept that the stay applications raised relatively discrete issues (as to the arbitration agreement and the like), and I consider that Bianca’s conduct in persisting with the applications (without the benefit of judicial advice as to whether she was justified in resisting a referral to arbitration) has the requisite element of unreasonableness to satisfy the Morningstar test. I am not persuaded that there has been established any real risk of stultification of claims if such an order is made. Nor am I persuaded that the case is on all fours with the situation described by the Full Federal Court in its costs decision in this regard. True it is that in the history of my case management of the proceedings all parties have taken, from time to time, tendentious positions and appear to have spared little expense in litigating up hill and down dale. However, the very fact that all parties may be criticised for such behaviour makes it important here to draw a line in the sand (particularly having regard to the mandate of s 56 of the Civil Procedure Act).
  4. Finally, insofar as the reserved costs of the contested subpoena applications are concerned, I consider it appropriate for those costs to be borne by Bianca in circumstances where the Subpoenas were issued in support of the proposed s 247A applications (and were pressed in the face of disputes as to the referral of the substantive disputes to arbitration). It cannot be said that nothing relevantly has changed since those costs were reserved. What has changed is that the disputes between the parties have either been referred to arbitration or stayed; and there is no reason to believe that they will be disposed of in the near future. That is a sufficient change in circumstance to warrant the reconsideration of the question of costs. In my opinion, it is appropriate for the costs now to be determined (because the proceedings are now otherwise stayed) and that costs should follow the event. However, I would not order those costs to be on an indemnity basis (as I am not persuaded that the factors that led to the making of such an order in relation to the stay applications apply with equal force to the subpoena applications); nor would I order HPPL’s costs to be met of an application that it did not make even though I accept that it was not unreasonable for it to make the submissions that it did on this issue (and the fact that they were not determined was due to the success of the application by Gina to set aside the Subpoenas). Moreover, to the extent that HPPL’s costs were incurred in order to protect its position in relation to the arbitration the subject of the stay applications, I consider that those costs would be incidental to the stay applications and recoverable in that context.
  5. The Subpoena application costs and the (already ordered) costs of the application to set aside the HPPL Notice to Produce, should be payable forthwith for the reasons set out above in relation to the other costs orders.

Orders

  1. For the reasons set out above, I make the following orders:

In proceedings 2017/86718 (Oppression Proceeding)

(1) Subject to further order, pursuant to s 8(1)(a) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), order that paragraphs 14 to 17 of the affidavit sworn 28 February 2020 by Timothy Ignatius L’Estrange be kept confidential and not be made available nor disclosed to any person other than the legal representatives of the parties in connection with this proceeding anywhere in the Commonwealth for a period of five years.

(2) Pursuant to s 26 of the Civil Procedure Act 2005 (NSW), order the parties to mediation, such mediation to take place within three months of the making of these orders.

(3) Order that the costs of the mediation (namely, the fees and disbursements of the mediator or mediators and any venue, equipment, or related service costs) are to be dealt with in accordance with order 2 of the orders made today in proceedings 2011/285907.

(4) Direct the parties to seek to agree on (and jointly to appoint) a mediator or mediators for the purposes of the said mediation within one month of the making of these orders and direct the parties to notify the associate to Ward CJ in Eq by 17 April 2020 of the agreed identity of the said mediator(s) or, failing agreement, their proposed choice of mediator(s) (in which case Ward CJ in Eq will nominate the mediator(s) to be appointed).

(5) Direct the parties, within seven days of the conclusion of the mediation, to inform the associate to Ward CJ in Eq as to whether settlement has been reached at the mediation and of any orders sought to be made in relation to the proceedings in that regard.

(6) Liberty to the parties to apply to the associate to Ward CJ in Eq on three days’ notice.

(7) Order Bianca Hope Rinehart, as trustee for the Hope Margaret Hancock Trust, to pay the costs of the defendants of, and incidental to, the second defendant’s amended notice of motion dated 15 July 2019 and filed on 16 July 2019, and the first defendant’s amended notice of motion dated 26 June 2019 (including the hearings of 23 May 2017, 27-28 August 2018, and 15-19, 23 and 25 July 2019), such costs to be paid on an indemnity basis and to be payable forthwith.

(8) Order Bianca Hope Rinehart, as trustee for the Hope Margaret Hancock Trust, to pay the costs of the first defendant (on the ordinary basis and payable forthwith) of the hearings to set aside subpoenas issued by Bianca Hope Rinehart in these proceedings to the Institute of Public Affairs, CEF Pty Ltd and the Hon Barnaby Joyce MP (see Rinehart v Rinehart [2018] NSWSC 1102).

(9) Order that the existing costs orders made in favour of the second defendant in respect of its application to set aside a notice to produce issued to it by Bianca Hope Rinehart, as trustee for the Hope Margaret Hancock Trust (see Rinehart v Rinehart [2019] NSWSC 759) be varied such that the costs be payable forthwith.

In proceedings 2011/285907 (the Trustee proceeding)

(1) Pursuant to s 26 of the Civil Procedure Act 2005 (NSW), order the parties to mediation, such mediation to take place within three months of the making of these orders.

(2) Order that the costs of the mediation (namely, the fees and disbursements of the mediator or mediators and any venue, equipment or related service costs) be borne (subject to any agreement between all the relevant parties to the contrary) in equal one-sixth shares by each of the Rinehart family members (i.e., Bianca (in her personal capacity), John, Hope, Ginia and Gina) and Hancock Prospecting Pty Ltd.

(3) Direct the parties to seek to agree on (and jointly to appoint) a mediator or mediators for the purposes of the said mediation within one month of the making of these orders and direct the parties to notify the associate to Ward CJ in Eq by 17 April 2020 of the agreed identity of the said mediator(s) or, failing agreement, their proposed choice of mediator(s) (in which case Ward CJ in Eq will nominate the mediator(s) to be appointed).

(4) Direct the parties, within seven days of the conclusion of the mediation, the parties are to inform the associate to Ward CJ in Eq as to whether a settlement has been reached at the mediation and of any orders sought to be made in relation to the proceedings in that regard.

(5) Liberty to the parties to apply to the associate to Ward CJ in Eq on three days’ notice.

Jacobs Group (Australia) v Commonwealth of Australia [2020] VSC 127 (20 March 2020)

IN THE SUPREME COURT OF VICTORIA
Not Restricted

AT MELBOURNE

COMMERCIAL COURT

ARBITRATION LIST

S ECI 2019 05245

JACOBS GROUP (AUSTRALIA) PTY LIMITED (ACN 001 024 095)
Applicant
– and –
THE COMMONWEALTH OF AUSTRALIA (AS REPRESENTEDBY THE DEPARTMENT OF DEFENCE)

Respondent

JUDGE:
RIORDAN J
WHERE HELD:
Melbourne
DATE OF HEARING:
12 February 2020
DATE OF JUDGMENT:
20 March 2020
CASE MAY BE CITED AS:
Jacobs Group (Australia) v Commonwealth of Australia
MEDIUM NEUTRAL CITATION:
[2020] VSC 127

ARBITRATION – Application for leave to appeal under s 34A of the Commercial Arbitration Act 2011 (Vic) – Whether agreement not to modify rights of appeal under prior Act constituted agreement to appeal under s 34A – No agreement to appeal.

STATUTORY INTERPRETATION – Whether agreement to appeal under s 34A of the Commercial Arbitration Act 2011 (Vic) must expressly or implicitly refer to the section – Principles of statutory interpretation considered – Not necessary for agreement to reference s 34A.

TABLE OF CONTENTS

HIS HONOUR:

1 By originating application for leave to appeal against award filed 20 November 2019, the applicant applies under s 34A of the Commercial Arbitration Act 2011 (Vic) (‘2011 Act’) for leave to appeal on a question of law in respect of a Partial Award dated 21 August 2019 made against the applicant in the sum of $3,424,970.35.

2 By summons filed 12 February 2020, the respondent applies for the proceeding to be dismissed on the ground that it is incompetent for lack of jurisdiction. On that day I ordered that:

Pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015, the question of whether having regard to the terms of s 34A(1) of the Commercial Arbitration Act 2011 (Vic) the Court has jurisdiction to hear the application for leave to appeal, is to be tried before the trial of the proceeding.

Contractual arrangements

3 On 28 April 2011, the applicant and the respondent entered into a Design Services Contract (DSC-1 2003) (‘the Contract’) under which the applicant agreed to provide the respondent with services for the AIR 9000 Phase 5C Facilities Project at the Townsville Royal Australian Air Force Base. The Contract included the following provisions in cl 12.13 by which disputes could be referred to arbitration:

(a) Arbitration pursuant to this clause will be conducted in accordance with the Rules of Arbitration of the International Chamber of Commerce (‘ICC Rules’) current at the time of the reference to arbitration and as otherwise set out in this clause….

(c) Nothing in this clause is intended to modify or vary the rights of appeal contained in the Commercial Arbitration Act 1984 (Vic). For the avoidance of doubt, the second sentence of Article 28(6) of the ICC Rules (in force from 1 January 1998) or its equivalent in any subsequent version of the ICC Rules shall not apply.

4 Clause 1.2 of the Contract provided:

In this Contract, unless the context otherwise indicates:…

(h) references to any legislation or to any section or provision of any legislation include any:

(i) statutory modification or re-enactment of or any statutory provision substituted for that legislation, section or provision; …

5 Article 28(6) of the International Chamber of Commerce Rules of Arbitration (‘ICC Rules’) at the relevant time provided:

Every Award shall be binding on the parties. By submitting the dispute to arbitration under these Rules, the parties undertake to carry out any Award without delay and shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made.

6 On 16 August 2017, the respondent requested an arbitration of the matters contained in an unresolved notice of dispute issued on 18 August 2016.

7 On 21 August 2019, the arbitrator issued the Partial Award.

Legislative regime

8 Section 38 of the Commercial Arbitration Act 1984 (Vic) (‘1984 Act’) provided for what has been described as an opt-out regime for judicial review of awards. Specifically, it provided as follows:

(1) Without prejudice to the right of appeal conferred by subsection (2), the Court shall not have jurisdiction to set aside or remit an award on the ground of error of fact or law on the face of the award.(2) Subject to subsection (4), an appeal shall lie to the Supreme Court on any question of law arising out of an award.

(3) On the determination of an appeal under subsection (2) the Supreme Court may by order—

(a) confirm, vary or set aside the award; or

(b) remit the award, together with the Supreme Court’s opinion on the question of law which was the subject of the appeal, to the arbitrator or umpire for reconsideration or, where a new arbitrator or umpire has been appointed, to that arbitrator or umpire for consideration—and where the award is remitted under paragraph (b) the arbitrator or umpire shall, unless the order otherwise directs, make the award within three months after the date of the order.

(4) An appeal under subsection (2) may be brought by any of the parties to an arbitration agreement—

(a) with the consent of all the other parties to the arbitration agreement; or

(b) subject to section 40, with the leave of the Supreme Court.

(5) The Supreme Court shall not grant leave under subsection (4)(b) unless it considers that—

(a) having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more parties to the arbitration agreement; and

(b) there is—

(i) a manifest error of law on the face of the award; or

(ii) strong evidence that the arbitrator or umpire made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law.

(6) The Supreme Court may make any leave which it grants under subsection (4)(b) subject to the applicant complying with any conditions it considers appropriate.

9 With respect to agreements to exclude rights of appeal, s 40(1) of the 1984 Act provided:

Subject to this section and section 41—(a) the Supreme Court shall not, under section 38(4)(b), grant leave to appeal with respect to a question of law arising out of an award; and

(b) no application may be made under section 39(1)(a) with respect to a question of law—

if there is in force an agreement in writing (in this section and section 41 referred to as an exclusion agreement) between the parties to the arbitration agreement which excludes the right of appeal under section 38(2) in relation to the award or, in a case falling within paragraph (b), in relation to an award to which the determination of the question of law is material.

10 On 17 November 2011, the 2011 Act came into operation. Section 34A provides for what has been described as an opt-in regime for judicial review of awards. With respect to appeals to the Court against awards, s 34A relevantly provides:

(1) An appeal lies to the Court on a question of law arising out of an award if—(a) the parties agree, before the end of the appeal period referred to in subsection (6), that an appeal may be made under this section; and

(b) the Court grants leave.

(2) An appeal under this section may be brought by any of the parties to an arbitration agreement.

(3) The Court must not grant leave unless it is satisfied—

(a) that the determination of the question will substantially affect the rights of one or more parties; and

(b) that the question is one which the arbitral tribunal was asked to determine; and

(c) that, on the basis of the findings of fact in the award—

(i) the decision of the tribunal on the question is obviously wrong; or

(ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt; and

(d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the Court to determine the question.

11 Section 43 of the 2011 Act provides that the Act applies to all existing arbitration agreements, except where the arbitration commenced before the commencement of the Act. Specifically, it provides:

(1) Subject to subsection (2)—(a) this Act applies to an arbitration agreement (whether made before or after the commencement of this Act) and to an arbitration under such an agreement; and

(b) a reference in an arbitration agreement to the Commercial Arbitration Act 1984, or a provision of that Act, is to be construed as a reference to this Act or to the corresponding provision (if any) of this Act.

(2) If an arbitration was commenced before the commencement of this Act, the law governing the arbitration and the arbitration agreement is to be that which would have been applicable if this Act had not been enacted.

(3) For the purposes of this section, an arbitration is taken to have been commenced if—

(a) a dispute to which the relevant arbitration agreement applies has arisen; and

(b) the arbitral tribunal has been properly constituted.

12 Both parties referred to s 1AC of the 2011 Act which, under the heading ‘Paramount object of Act’, provides:

(1) The paramount object of this Act is to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense.(2) This Act aims to achieve its paramount object by—

(a) enabling parties to agree about how their commercial disputes are to be resolved (subject to subsection (3) and such safeguards as are necessary in the public interest); and

(b) providing arbitration procedures that enable commercial disputes to be resolved in a cost effective manner, informally and quickly.

(3) This Act must be interpreted, and the functions of an arbitral tribunal must be exercised, so that (as far as practicable) the paramount object of this Act is achieved.

(4) Subsection (3) does not affect the application of section 35 of the Interpretation of Legislation Act 1984 for the purposes of interpreting this Act.

Does the Court have jurisdiction to give leave to appeal under s 34A of the 2011 Act?

13 It is common ground that, for the Court to have jurisdiction, it must be satisfied that the parties have ‘agree[d] … that an appeal may be made under this section’, being

s 34A of the 2011 Act.

14 The issues requiring determination are:

(a) whether cl 12.13 of the Contract constitutes an agreement that an appeal could be made against an award (‘the first contention’); and

(b) whether such an agreement must relate expressly or implicitly to an appeal ‘under this section’, being s 34A (‘the second contention’).

Respondent’s submissions

15 The respondent submitted that the Court does not have jurisdiction to consider this appeal because the pre-condition contained in s 34A(1)(a) of the 2011 Act is not satisfied.

16 With respect to the first contention, it was submitted as follows:

(a) At most, cl 12.13 of the Contract constituted an agreement to leave open appeal rights under the 1984 Act. It did not constitute an agreement to allow the parties a right of appeal. An agreement not to opt out of the appeal rights under the 1984 Act does not amount to a positive agreement to opt in to the appeal rights arising under the 2011 Act.

(b) Reference to the objects of the 2011 Act supports a strict reading of the parties’ rights to appeal arbitral awards.

(c) The 2011 Act was not a statutory modification or re-enactment of the 1984 Act. In any event, a reading of cl 12.13 which incorporates the 2011 Act does not change the requirement for an agreement.

17 With respect to the second contention, it was submitted as follows:

(a) From the plain meaning of the text, any agreement to appeal only satisfies s 34A if it expressly or implicitly relates to an appeal ‘under this section’.(b) An agreement to appeal on a matter of law generally is not sufficient to satisfy the subsection because an appeal under s 34A is of a particular type and subject to the restraints on the grant of leave under subsection (3).

(c) The fact that s 34A would effectively negate all appeals under prior arbitration agreements is a necessary consequence of Parliament specifically making the legislation retrospective.

Applicant’s submissions

18 On behalf of the applicant, it was submitted as follows:

(a) By cl 12.13 of the Contract the parties agreed that, subject to leave of the Court, either could appeal against an award on a question of law.

(b) The requirement under s 34A of the 2011 Act that the agreement be for an appeal ‘under this section’ refers to an agreement for an appeal on a question of law.

19 In support of the first contention, it was submitted that:

(a) Section 38(4) of the 1984 Act provided two independent avenues for an appeal on a question of law arising from an award being:

(i) agreement of the parties (s 38(4)(a)); and/or

(ii) leave of the Court (s 38(4)(b)).

(b) Accordingly, cl 12.13(c) constituted an agreement by the parties that each had a right of appeal from an award on a question of law if the Court granted leave. By cl 12.13(c), the parties intended to commit themselves to preserving the right of appeal.

(c) This objective intention is supported by the fact that cl 12.13 excluded the operation of art 28(6) of the ICC Rules, which arguably could have been construed as an agreement to restrict the right of appeal.

(d) The decisions in ASC AWD Shipbuilder Pty Ltd v Ottoway Engineering Pty Ltd and Ashjal Pty Ltd v Elders Toepfer Grain Pty Ltd are distinguishable on the basis that none of the arbitration clauses in those cases contained a specific provision preserving the right of appeal such as cl 12.13.

20 With respect to the second contention, it was submitted that the respondent’s contention that the agreement must specifically contemplate an appeal under s 34A:

(a) is unnecessarily formalistic;

(b) would have the consequence that all agreements to appeal on questions of law prior to the 2011 Act would be ineffective; and

(c) is not supported by the explanatory memorandum.

21 The applicant did not press its claim based on an implied term.

Authorities

22 In ASC v Ottoway, the Full Court of the Supreme Court of South Australia considered whether a commercial contract incorporating an arbitration agreement contained an implied term that an appeal may be made under the South Australian equivalent of s 34A of the 2011 Act. The circumstances were as follows:

(a) On 4 September 2009 the parties entered into a commercial contract which provided that any dispute was to be referred to and finally resolved by arbitration in accordance with the Institute of Arbitrators and Mediators Australia Rules for the Conduct of Commercial Arbitrations.

(b) At the time of entering into the contract, commercial arbitrations in South Australia were governed by the Commercial Arbitration and Industrial Referral Agreements Act 1986 (SA) (‘1986 SA Act’), which relevantly included s 38(4) in identical terms to the 1984 Act.

(c) By the Commercial Arbitration Act 2011 (SA) (‘2011 SA Act’), the 1986 SA Act was repealed and appeals from arbitral awards became regulated by s 34A, which is in identical terms to s 34A of the 2011 Act.

(d) The arbitration had commenced after the commencement of the 2011 SA Act and, in November 2016, the arbitrator made an award in favour of the appellant.

23 The trial judge found that the contract contained an implied term that constituted the necessary agreement under s 34A.

24 The Full Court allowed the appeal against the decision of the trial judge on the basis that:

(a) an implied term giving the parties a right of appeal was not necessary to give business efficacy to the contract; and(b) there was nothing in the ‘express terms of the contract, its manifest purpose [or] the matrix in which it was made’, which irresistibly led to the necessary presumed intention.

25 In Ashjal v Elders, Hammerschlag J considered whether a term could be implied in the following similar circumstances:

(a) The plaintiff and defendant were parties to two contracts for the supply of wheat, both dated 23 July 2010. The terms of the contracts provided that disputes were to be resolved by arbitration in accordance with the Grain Trade Australia (‘GTA’) Trade Rules, which incorporated the GTA Dispute Resolution Rules.(b) At the time the parties entered into the contracts, the Commercial Arbitration Act 1984 (NSW) (‘1984 NSW Act’) was in force, which included ss 38(2) and (4) in the same terms as the 1984 Act.

(c) The defendant was successful under an award dated 17 November 2011 and the plaintiff sought leave to appeal.

(d) At the time of the award, the Commercial Arbitration Act 2010 (NSW) was in force, which contained s 34A(1) in the same terms as the 2011 Act.

26 The plaintiff contended that there were implied terms in the contracts that either party may appeal on a question of law with the leave of the Court.

27 His Honour applied the tests established in BP Refinery Westernport Pty Ltd v Hastings Shire Council and rejected the plaintiff’s contention for the following reasons:

(a) The tests had to be met at the time of entering into the contracts and, at that time, the 1984 NSW Act gave a right of appeal with leave or by agreement. Therefore the implied terms were not necessary to give the contracts business efficacy.

(b) Given the state of the legislation at the time of entering into the contracts, the terms contended for were not obvious.

(c) Article 13 of the GTA Dispute Resolution Rules adopted by the contracts contemplated the possibility of amendment to the legislation and therefore the implied terms would contradict the express terms of the contracts.

Does cl 12.13 of the Contract constitute an agreement that an appeal could be made against an award?

28 The question is determined by whether, on a proper construction, the agreement of the parties not to modify or vary the rights of appeal contained in the 1984 Act was an agreement that an appeal could be made against an award.

Principles of construction in commercial contracts

29 To construe the terms of a commercial contract, the Court asks ‘what a reasonable businessperson would have understood those terms to mean’. To answer that question, ‘the reasonable businessperson [is] placed in the position of the parties’, and the Court applies the following principles:

(a) The terms are construed objectively and the subjective intentions of the parties are irrelevant.(b) The objective approach requires reference to the text and its ordinary meaning, together with:

(i) the context, being the entire text of the contract including matters referred to in the text; and(ii) the purpose.

These matters will ordinarily be identified by reference to the contract alone, but evidence of mutually known objective background circumstances relevant to the purpose is admissible ‘no matter how clear the “ordinary meaning” of the words’. Identification of purpose may allow admission of evidence of the genesis of the transaction, the background, the context and the market in which the parties are operating.

(c) Unless a contrary intention appears in the contract, the court is entitled to approach the task of interpretation on the assumption that the parties intended to produce a commercial result, and should construe it so as to avoid a commercial nonsense. However, the court does not weigh the commerciality of the agreement, and business commonsense is a topic on which reasonable minds may differ.(d) If, after completion of this process, the language used in the contract ‘is ambiguous or susceptible of more than one meaning’, then evidence of surrounding circumstances external to the contract (‘surrounding circumstances’) is admissible to assist with interpretation of the contract (‘the ambiguity requirement’).

(e) Surrounding circumstances are:

events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating.

(f) However, ‘evidence of the parties’ statements and actions reflecting their actual intentions and expectations’ is inadmissible. Although evidence of prior negotiations is admissible to establish objective background facts known to both parties and the subject matter of the contract, evidence of negotiations reflective of actual intentions and expectations is not receivable.(g) Post contractual conduct is inadmissible to construe the terms of the contract. However, the parties’ subsequent communications may be relevant to determine whether the parties intended to enter into a binding contract.

30 Despite the above rules, evidence of surrounding circumstances may be admissible to establish that:

(a) an expression has a particular meaning in business custom or usage;

(b) a particular interpretation was either rejected or accepted by the parties; or

(c) the contract should be rectified.

Further, at common law, a court may supply, omit or correct words to avoid absurdity or inconsistency.

Conclusion

31 I reject the applicant’s submission that cl 12.13 is an express agreement that the parties would have a right to appeal any award on a question of law for the following reasons:

(a) On a plain reading, cl 12.13 does not confer on the parties any such right.(b) The effect of not excluding a party’s rights under s 38 of the 1984 Act was that a party could appeal on a question of law with:

(i) the consent of the other parties; or(ii) leave of the Court.

By including cl 12.13, the parties plainly intended not to exclude rights of appeal under the 1984 Act. However, the clause says nothing about:

(i) whether one party would consent to the other appealing pursuant to s 38(4)(a) of the 1984 Act; or(ii) the intention of the parties if the rights of appeal under the 1984 Act were amended.

(c) The fact that the parties made it plain that they did not intend to exclude their appeal rights, as they could in an exclusion agreement under s 40(1) of the 1984 Act, does not lead to the conclusion that the parties were obliged to consent to an appeal under s 38(4)(a) of that Act. It is even clearer that cl 12.13 cannot be read as an agreement that each party would consent to the other having a right to appeal on a question of law under any amending Act.(d) Although, unlike the above authorities, the Contract was not silent on the question of appeals against awards, cl 12.13 said no more than that the parties did not intend to modify or vary the rights of appeals under the 1984 Act. Accordingly, I would adapt the words of Chief Justice Kourakis in ASC v Ottoway and say:

It is one thing to recognise that the obvious effect of the [contract expressly not excluding] the question of appeals against awards was that either party was at liberty to seek permission to appeal if the statute so allowed and quite another to leap from that to a presumption that the parties intended to preserve that power for each other by contractually binding themselves to assist the other to appeal against an award made in their favour. It may appeal to one person’s sense of fairness that there be such a term, but the removal of judicial review might be welcomed by another for its greater efficiency.

(e) Neither do I consider that the interpretative provision, being cl 1.2 of the Contract, assists the applicant. It simply provides that references to any legislation includes references to any statutory modification or re-enactment. That has the effect that cl 12.13 can be read as follows:

Nothing in this clause is intended to modify or vary the rights of appeal contained in the Commercial Arbitration Act 1984 (Vic) or the Commercial Arbitration Act 2011 (Vic). For the avoidance of doubt, the second sentence of Article 28(6) of the ICC Rules (in force from 1 January 1998) or its equivalent in any subsequent version of the ICC Rules shall not apply.

Reading the clause in the above manner would not constitute an express agreement by the parties to consent to an appeal against an award on a question of law.

32 Accordingly, I find that the parties did not agree that they have a right of appeal under s 34A.

Must an agreement to appeal relate expressly or implicitly to an appeal under s 34A?

33 This question gives rise to an issue of statutory construction. The alternative constructions of s 34A(1)(a) put by the parties are that:

(a) the agreement must expressly or implicitly refer to an appeal under s 34A (the respondent’s construction); or

(b) the agreement must be of the type of appeal provided under s 34A, being an appeal on a question of law (the applicant’s construction).

Principles of statutory interpretation

34 The primary object of statutory construction is to construe the relevant provision so that its legal meaning is consistent with:

(a) the language of the relevant provision, being the text; and

(b) the legislative purpose of the statute.

The legal meaning is ‘the meaning that the legislature is taken to have intended [the provision] to have’. It may or may not be the same as the literal meaning.

35 Accordingly, in statutory construction, the focus is on the text and the legislative purpose as follows:

(a) The primacy of the text has been emphasised by the High Court. It has been said that the process of statutory interpretation starts and ends with the text.

(b) To ascertain the legislative purpose, the Court first considers the text of the relevant provision in its context. The context means:

(i) the whole of the Act or other instrument;

(ii) the existing state of the law;

(iii) the mischief that the statute was intended to remedy; and

(iv) the history of the legislative scheme.

36 Section 35(b) of the Interpretation of Legislation Act 1984 (Vic) provides that ‘[i]n the interpretation of a provision of an Act … consideration may be given to’ extrinsic material to ascertain the purpose of the legislation, even if the language is clear and unambiguous. I emphasise the word ‘may’ because if the meaning of the text is plain ‘there is no occasion to look to the extrinsic material’. As the Court of Appeal has said in respect of this section:

(a) ‘it would be inappropriate to resort to parliamentary debates in order to seek to create an ambiguity in a section which is otherwise, at least in relative terms, clear’; and(b) ‘the court needs to be careful not to permit recourse to this section to undermine its primary function of seeking to ascertain the intention of the legislation from the content of the Act itself’.

This section does permit ‘a court to consider the purposes of an Act in determining whether there is more than one possible construction’, but such material cannot displace the meaning of the statutory text.

37 If the literal meaning of the text is consistent with the identified legislative purpose, the literal meaning will be accepted as the legal meaning.

38 However, if the literal meaning conflicts with the identified legislative purpose, a departure from the literal meaning may be justified. The resultant tension was described by Francis Bennion in Statutory Interpretation:

Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with.

39 Examples of conflicts between the literal meaning and the identified legislative purpose, which have justified departure from the literal meaning, include where:

(a) The literal meaning would conflict with other provisions of the statute;

(b) The literal meaning is inconsistent with the purpose of the statute;

(c) The literal meaning is incapable of practical application; or

(d) Adoption of the literal meaning would lead to a result that is absurd, unreasonable or anomalous.

40 If it is determined that such a conflict exists, the approach to reconciliation of the conflict is as follows:

(a) First, if an alternative construction is to be adopted as the legal meaning, it is necessary that the alternative construction is ‘reasonably open’ and ‘consistent with the language in fact used by the legislature’. This is necessary because ‘the task remains the construction of the words the legislature has enacted’. ‘The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions’.

(b) Section 35(a) of the Interpretation of Legislation Act 1984 (Vic) provides that ‘a construction that would promote the purpose or object underlying the Act … shall be preferred to a construction that would not promote that purpose or object’. The choice is only between a purpose that will promote the purpose and one that will not. The section is not directed to the choice ‘as to the construction which “will best achieve” the object of the Act’. 

(c) If the inconsistency between the literal meaning and the legislative purpose is the result of ‘simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision’, an alternative construction, which is consistent with the legislative purpose, may be more ‘readily’ adopted.

(d) After the identification of an alternative construction, the legal meaning will be determined by balancing:

(i) the strength of the literal meaning as against the alternative construction; and

(ii) the extent to which these meanings are consistent with the promotion of the legislative purpose.

41 This balancing exercise has been explained by the High Court as follows:

(a) ‘If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.’

(b) ‘[I]nconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which … is reasonably open and more closely conforms to the legislative intent’.

Conclusion

42 In my opinion, s 34A is capable of bearing both meanings for which the parties contend, but should be read as requiring an agreement for the parties to appeal on a question of law. It does not require the parties:

(a) to expressly or implicitly recognise that the appeal is under s 34A; or(b) to even be aware of the section at the time of the agreement.

43 My reasons for this conclusion are as follows:

(a) I reject the respondent’s submission that an appeal under s 34A is effectively sui generis because it is subject to the restraints on the grant of leave under subsection (3). Section 34A(1) contains two independent requirements being:

(i) an agreement with respect to the appeal; and(ii) leave of the Court.

The leave requirement is separate and distinct from the agreement to appeal ‘to the Court on a question of law’. The constraints on leave in subsection (3) are similarly distinct and it is not necessary for the agreement to make reference to the leave requirement or the constraints on leave.

(b) The paramount object of the Act is to facilitate resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense and to enable parties to agree about how their commercial disputes are to be resolved. If the parties agree that they may appeal on a question of law, leave is still a requirement and the purpose of the Act is not furthered by a technical need for the agreement to appeal on a question of law to reference the particular section of the 2011 Act under which it is brought.(c) The 2011 Act plainly contemplates regulating arbitration agreements from before and after its commencement. If the parties to an arbitration agreement entered into before the commencement of the 2011 Act were contractually bound to consent to an appeal on a question of law, the respondent’s interpretation would render the agreement unenforceable because it would not relate to an appeal ‘under this section’, being s 34A. I should only come to such a conclusion if I am reasonably certain that this was the legislative intention. As Dixon CJ explained in Maxwell v Murphy:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.

For reasons expressed above, I do not have reasonable certainty that Parliament had such an intention.

(d) With respect to s 34A, the explanatory memorandum to the 2011 Act states:

Clause 34A enables an appeal to the Supreme Court (or another court agreed by the parties as referred to in clause 6) on a question of law, if the parties have agreed prior to the commencement of arbitration that such appeals may be made and the Court grants leave.

It is apparent that this makes no reference to a requirement that the agreement refer to s 34A appeal rights and provides no support to the respondent’s submissions.

Orders

44 I propose to dismiss this proceeding and will hear the parties on the question of costs.

A and B v C, D and E [2020] EWCA Civ 409 (19 March 2020)

Neutral Citation Number: [2020] EWCA Civ 409
Case No: A4/2020/0333

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THEHIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
COMMERCIAL COURT
MR JUSTICE FOXTON
[2020] EWHC 258 (Comm)

Royal Courts of Justice
Strand, London, WC2A 2LL
19/03/2020

B e f o r e :

LORD JUSTICE FLAUX
LORD JUSTICE NEWEY
and
LORD JUSTICE MALES

____________________

Between:

A and B
Appellants
– and –
 
C, D and E
Respondents

____________________

Richard Lissack QC, Teresa Rosen Peacocke and Leonora Sagan (instructed by Cooke, Young & Keidan LLP)) for the Appellants
Ben Carroll of Linklaters LLP for the First and Second Respondents
Angeline Welsh and Felix Wardle (instructed by Bryan Cave Leighton Paisner LLP) for the Third Respondent
Hearing date: 12 March 2020

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

Lord Justice Flaux:

Introduction

    1. The appellants appeal, with the permission of the judge, the Order of Foxton J dated 14 February 2020 dismissing the appellants’ Arbitration Claim seeking an order under section 44(2)(a) of the Arbitration Act 1996 to take the evidence of the third respondent in England so that it can be adduced in an arbitration being conducted in New York between the appellants and the first and second respondents.
    2. The third respondent is not a party to the arbitration and the appeal concerns what the judge described as “a long-standing controversy, on which there are conflicting statements by a number of judges” as to whether orders under section 44 can be made against non-parties to the arbitration.

Factual background

    1. The dispute being arbitrated in New York arises in the context of two settlement agreements between the appellants and the first and second respondents respectively in relation to the exploration and development of an oil field off the coast of Central Asia. Under those agreements the appellants were entitled to a percentage of the net sale proceeds if the first and second respondents sold their respective interests in the field, which they did in 2002. A central issue in the arbitration is the nature of certain payments made by the first and second respondents to the Central Asian government described as “signature bonuses” and whether those amounts are deductible as costs in calculating the sums due to the appellants.
    2. The appellants contend that the sums paid were bribes and so not properly deductible. They rely upon the fact that G, who negotiated the payment on behalf of the Central Asian government, was indicted almost 20 years ago by a US court for violations of the US Foreign Corrupt Practices Act. The third respondent, who is resident in England, was the lead negotiator for the respondents who negotiated directly with G.
    3. The third respondent was not prepared to go to New York to give evidence and, on 13 November 2019, the tribunal granted the appellants permission to make an application to the English Court to compel his testimony. The appellants seek an Order permitting them to take his evidence by deposition under CPR 34.8.

The relevant statutory framework

    1. The provisions of the Arbitration Act 1996 which are relevant to the present appeal are as follows:

1. General principles.

The provisions of this Part are founded on the following principles, and shall be construed accordingly—

(a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;

(b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest;

(c) in matters governed by this Part the court should not intervene except as provided by this Part.

2. Scope of application of provisions.

(3) The powers conferred by the following sections apply even if the seat of the arbitration is outside England and Wales or Northern Ireland or no seat has been designated or determined—

(a) section 43 (securing the attendance of witnesses), and

(b) section 44 (court powers exercisable in support of arbitral proceedings);

but the court may refuse to exercise any such power if, in the opinion of the court, the fact that the seat of the arbitration is outside England and Wales or Northern Ireland, or that when designated or determined the seat is likely to be outside England and Wales or Northern Ireland, makes it inappropriate to do so.

4. Mandatory and non-mandatory provisions.

(1) The mandatory provisions of this Part are listed in Schedule 1 [these include section 43 but not section 44] and have effect notwithstanding any agreement to the contrary.

(2) The other provisions of this Part (the “non-mandatory provisions”) allow the parties to make their own arrangements by agreement but provide rules which apply in the absence of such agreement.

38. General powers exercisable by the tribunal.

(5) The tribunal may direct that a party or witness shall be examined on oath or affirmation, and may for that purpose administer any necessary oath or take any necessary affirmation.

43. Securing the attendance of witnesses.

(1) A party to arbitral proceedings may use the same court procedures as are available in relation to legal proceedings to secure the attendance before the tribunal of a witness in order to give oral testimony or to produce documents or other material evidence.

(2) This may only be done with the permission of the tribunal or the agreement of the other parties.

(3) The court procedures may only be used if—

(a) the witness is in the United Kingdom, and

(b) the arbitral proceedings are being conducted in England and Wales or, as the case may be, Northern Ireland.

(4) A person shall not be compelled by virtue of this section to produce any document or other material evidence which he could not be compelled to produce in legal proceedings.

44. Court powers exercisable in support of arbitral proceedings.

(1) Unless otherwise agreed by the parties, the court has for the purposes of and in relation to arbitral proceedings the same power of making orders about the matters listed below as it has for the purposes of and in relation to legal proceedings.

(2) Those matters are—

(a) the taking of the evidence of witnesses;

(b) the preservation of evidence;

(c) making orders relating to property which is the subject of the proceedings or as to which any question arises in the proceedings—

(i) for the inspection, photographing, preservation, custody or detention of the property, or

(ii) ordering that samples be taken from, or any observation be made of or experiment conducted upon, the property;

and for that purpose authorising any person to enter any premises in the possession or control of a party to the arbitration;

(d) the sale of any goods the subject of the proceedings;

(e) the granting of an interim injunction or the appointment of a receiver.

(3) If the case is one of urgency, the court may, on the application of a party or proposed party to the arbitral proceedings, make such orders as it thinks necessary for the purpose of preserving evidence or assets.

(4) If the case is not one of urgency, the court shall act only on the application of a party to the arbitral proceedings (upon notice to the other parties and to the tribunal) made with the permission of the tribunal or the agreement in writing of the other parties.

(5) In any case the court shall act only if or to the extent that the arbitral tribunal, and any arbitral or other institution or person vested by the parties with power in that regard, has no power or is unable for the time being to act effectively.

(6) If the court so orders, an order made by it under this section shall cease to have effect in whole or in part on the order of the tribunal or of any such arbitral or other institution or person having power to act in relation to the subject-matter of the order.

(7) The leave of the court is required for any appeal from a decision of the court under this section.

82. Minor definitions

(1) In this Part

“legal proceedings” means civil proceedings in England and Wales in the High Court or the county court or in Northern Ireland in the High Court or a county court;”

The judgment

    1. The judge noted at [11] of his judgment that at first blush the language of section 44, particularly section 44(1), suggests that the Court has the same power to make orders against non-parties to an arbitration as it would have in legal proceedings to make orders against non-parties to the litigation. Furthermore, the reference in section 44(2)(a) to “the taking of evidence of witnesses” might suggest that it was principally concerned with securing evidence from witnesses who are not in the control of the arbitrating parties. However he considered that, on a review of the authorities, the position was more complex.
    2. He considered first the decision of Moore-Bick J in Commerce and Industry Insurance v Certain Underwriters at Lloyd’s [2002] 1 WLR 1323, the only authority specifically concerned with section 44(2)(a). There the arbitration tribunal sitting in New York issued a letter of request for the taking of evidence in this jurisdiction of two Lloyd’s brokers. Moore-Bick J set aside an order obtained ex parte for the taking of their evidence under section 1 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 on the basis that the arbitration tribunal was not a “tribunal” within the meaning of the Act. However, on the day of the hearing the applicant applied instead for an order under section 44(2)(a) of the Arbitration Act. Foxton J said that Moore-Bick J was clearly of the view he had jurisdiction to make an order direct against the witnesses, but the point that the subsection was limited to making orders against arbitrating parties does not seem to have been argued. In the event, Moore-Bick J decided not to make an order under section 44(2)(a) as a matter of discretion, so the precise form of order which would have been made was not apparent.
    3. The approach of Foxton J was particularly influenced by two decisions at first instance. The first was the decision of Males J, as he then was, in Cruz City Mauritius Holdings v Unitech Limited [2014] EWHC 3704 (Comm); [2015] 1 Lloyd’s Rep 191 which concerned an attempt to serve out of the jurisdiction an application for a freezing injunction against non-parties to the arbitration. As Foxton J says at [15], the immediate question in that case was whether service out against a non-party to the arbitration was possible under CPR 62.5(1)(c) although in considering that question Males J had to consider whether CPR 62.5(1)(b) (which relates to an order under section 44) permitted service on a non-party. He reviewed the authorities which had considered the question whether section 44 permitted orders against non-parties, noting the views of judges either way. Males J concluded that the better view was that section 44 did not include the power to make an order against a non-party. His reasons were set out at [48] to [50] of his judgment which Foxton J quotes in full.
    4. At [16] Foxton J noted that the conclusion of Males J was strictly obiter but that there had been full argument on the point, unlike in other cases. He then went on to consider the other case which particularly influenced his approach, the decision of Sara Cockerill QC (as she then was) in DTEK Trading SA v Morozov [2017] EWHC 1704 (Comm); [2017] Bus LR 628. That case concerned an application for permission to serve out under CPR 62.5(1)(b) in respect of an application against a non-party under section 44(2)(b). In that case, the judge considered the arguments challenging the conclusion of Males J in Cruz City but, having referred to the terms of section 44 itself and the authorities, she concluded at [56] that whilst there was plainly an argument as to the issue, she was clear in her own mind that the right answer was the one Males J had reached.
    5. At [18] Foxton J considered what the position would be without the benefit of prior authority:

“I can see considerable force in the arguments advanced in favour of the view that the jurisdiction under s.44 could, in an appropriate case, be exercised against a non-party. Those parts of s.44 which are suggestive of orders against arbitrating parties might reflect the fact that this was the dominant, but not exclusive, focus of the drafter. The fact that court injunctions can have legal force against non-parties even when the order is not made against them (as the Departmental Advisory Committee on Arbitration Law recognised in paragraphs 214 to 216) reflects the fact that a court order will engage interests, and give a right to be heard, to non-arbitrating parties, and will therefore necessarily involve a fundamental departure from the bilateral nature of consensual arbitration. For example, a court injunction against an arbitrating party can place a non-party who interferes with it in contempt of court, and a non-party affected by the order has the right to apply to vary or discharge the order. A power to make an order directly against a non-party would go further than this, but it might be said only incrementally.”

    1. He referred to a decision in Hong Kong where an order had been made against a non-party under the similarly worded section 45(2) of the Arbitration Ordinance, but said that the reasoning in Cruz City and DTEK was also persuasive and, like Moulder J in the recent case of Trans-Oil International v Savoy Trading [2020] EWHC 57 (Comm), he had concluded that he should follow those decisions. Accordingly, if the appellants were to succeed in establishing that the Court had jurisdiction to make an order against the third respondent under section 44(2)(a), they would have to distinguish the reasoning in those two cases.
    2. Foxton J then dealt with the two grounds upon which the appellants sought to distinguish that reasoning, the first of which was that section 44(2)(a) extends to non-parties because it refers to the taking of the evidence of witnesses, even if that was not the case for the other subsections. The judge rejected that argument for three reasons. First, the language and structure of the section, the introductory words of section 44(1) and the provisions on which the Courts had placed emphasis in Cruz City and DTEK apply to all the powers in section 44(2). The judge did not regard the argument that some of the powers could be exercised against non-parties whereas others could not as an attractive one in the absence of language in the section justifying differential treatment.
    3. Second, the judge considered that in so far as Sara Cockerill QC in DTEK at [47] noted that section 44(2)(a) was concerned with the English Court issuing letters of request to foreign courts for the taking of evidence of non-parties, those are not coercive orders directed at a non-party but a request made of a foreign court which may or may not exercise its own coercive powers over the non-party potential witness.
    4. Third, applications for coercive orders against non-party witnesses might be said to raise additional complications. If the power is the same as in relation to legal proceedings, it might suggest powers equivalent to CPR 34.8 but that does not have coercive effect. If the witness does not attend, the examiner fills in a certificate of non-attendance at which point the party seeking the deposition can apply to the Court for an order under CPR 34.10 requiring the witness to attend. Failure to attend is then a contempt of Court. Foxton J considered that if section 44(2) orders could not generally be made against non-parties it would be surprising if coercive orders could nonetheless be made against non-party witnesses under section 44(2)(a) when section 43 already makes specific provision for securing the attendance of witnesses with the two limitations that the provision is limited to securing the attendance of witnesses before the tribunal rather than an examiner and that the arbitral proceedings must be being conducted in this jurisdiction.
    5. The second ground upon which the appellants sought to distinguish Cruz City and DTEK was that, unlike in those cases, it was not necessary for the appellants to serve their application out of the jurisdiction because the third respondent is resident here. At [31] Foxton J noted that the submission that the difficulties in seeking section 44 relief against non-parties only arise where the application must be served outside the jurisdiction mirror the view expressed at 44.7.5 of Merkin and Flannery on the Arbitration Act 6th edition. The judge disagreed with that view, concluding at [33] that: “the position is not that applications against non-parties under s.44 have failed because it is not possible to serve those applications out of the jurisdiction. It is that applications to serve s.44 claims against non-parties out of the jurisdiction have failed because s.44 has been held not to apply to non-parties.”
    6. The judge went on to consider the issue of discretion, in other words, if he had held that he had jurisdiction to make an order under section 44(2)(a) would it have been appropriate to do so. He cited what Moore-Bick J said in Commerce & Industry Insurance at 1330C-D about the evidence that should be adduced in support of such an application:

“This should normally include an explanation of the nature of the proceedings, identification of the issues to which they gave rise and grounds for thinking that the person to be examined can give relevant evidence which justifies his attendance for that purpose. The greater the likely inconvenience to the witness, the greater the need to satisfy the court that he can give evidence which is necessary for the just determination of the dispute.”

    1. The judge said at [37] that the appellants had explained in broad outline why the third respondent’s evidence was of sufficient relevance to justify his giving evidence and he was satisfied that the appellants had shown sufficient justification for his attendance, subject to two caveats he came on to address. His reasons for that conclusion were: (i) the issue of the “signature bonuses” was clearly an issue of importance in the arbitration; (ii) the third respondent had been the lead commercial negotiator for the first and second respondents of the relevant agreement, involved in negotiating the signature bonuses; (iii) although the negotiations were over twenty years ago, there was sufficient prospect of the third respondent having relevant evidence to give, even if only that nothing memorable happened; (iv) the tribunal had already heard evidence from another person involved in the negotiations, Z, assistant general counsel. However, given their different roles, there was a sufficient possibility that the third respondent had relevant evidence to give, notwithstanding that Z had given evidence; (v) while the respondents’ points as to why the third respondent’s evidence is unlikely to add to that of Z may prove to have weight, it would not be appropriate for the Court hearing a section 44(2)(a) application to delve too deeply into the evidence given to date or to assess the relative weight of evidence, which was a matter for the tribunal.
    2. The first caveat was that the list of proposed topics about which the appellants proposed to ask the third respondent questions was too broad. The second caveat was the open offer the third respondent’s solicitors had made that, on being provided with various documents in the arbitration, the third respondent would produce a witness statement and then give evidence to the tribunal by video-link or, if the tribunal did not agree that procedure, before an examiner. The judge indicated that if he had been prepared to make an order, it would have been broadly along those lines.

Grounds of appeal and Respondents’ Notice

    1. The grounds of appeal on which the judge gave permission to appeal were:

(1) That the judge erred in law in holding that the Court does not have jurisdiction under section 44 to make an order against a non-party to the arbitration agreement;(2) That the judge further erred in law in holding that the reasoning in Cruz City and DTEK was equally applicable to an application under section 44(2)(a) or where it is not necessary to serve the application out of the jurisdiction;

(3) The judge ought to have held that on the true construction of section 44: (i) the Court’s powers extend to making an order against a non-party, subject to the exercise of the Court’s discretion; (ii) in particular the power under section 44(2)(a) extends to an order to take the evidence of a witness who is not a party to the arbitration agreement but who is located within the jurisdiction; and (iii) by virtue of section 2(3)(b) the Court can exercise its power under section 44(2)(a) to order the taking of the evidence of a witness within the jurisdiction in support of arbitral proceedings even if the seat of the arbitration is outside England and Wales.

    1. The third respondent served a Respondent’s Notice which sought to uphold the order made by Foxton J on different or additional grounds:

(1) That even if orders under section 44 can be made against non-parties, an order cannot be made for the taking of the evidence of a third party who is located in the jurisdiction, in support of a foreign seated arbitration being conducted abroad;(2) The conclusion of the judge at [37] that it would have been appropriate to make such an order if he had held that he had power to do so, was wrong, since he applied the wrong test when assessing whether it was appropriate to make an order under section 44(2)(a).

    1. The appellants contended that the third respondent should not be permitted to raise the second ground which was on analysis a cross-appeal for which the third respondent did not have the permission of the judge as required by section 44(7). This Court did not have power to grant permission: SAB Miller Africa v East African Breweries [2009] EWCA Civ 1564. In my judgment, that objection is misconceived. Appeals are against orders and the only order made by Foxton J was one dismissing the appellants’ application, and thus an order in the third respondent’s favour, against which he neither could nor would want to appeal. The second ground is properly a matter for a Respondent’s Notice which can be considered by this Court.

Summary of parties’ submissions

    1. On behalf of the appellants, Mr Richard Lissack QC submitted that Foxton J had erred in not following through the analysis at [18] of the judgment, that on the statutory language alone, section 44(2)(a) gave the Court power to make orders against a non-party. He had erred in concluding that he should follow Cruz City and DTEK in circumstances where those cases did not concern section 44(2)(a) or even section 44 at all but the scope of CPR62.5(1).
    2. He drew attention to the various provisions of the Arbitration Act set out above and to commentary on those sections in the Departmental Advisory Committee (DAC) Report on the Arbitration Bill. He emphasised the general power given to the tribunal by section 38(5) which drew the distinction between “party” and “witness” which indicated that “witness” was not limited to someone who was a party. Sections 43 and 44 were in a part of the Act beginning at section 42 headed “Powers of court in relation to arbitral proceedings”. Section 43 was concerned with securing the attendance of witnesses because the tribunal did not have power to compel attendance of witnesses. The powers under section 43 were limited geographically to witnesses in the United Kingdom and to making orders where the arbitral proceedings were being conducted in England and Wales, but were otherwise exercisable against all witnesses, not just party witnesses.
    3. Although section 44(2)(a) was dealing with something else, namely the taking of evidence of a witness, he submitted that there was no reason why “witness” in section 44(2)(a) should have a different meaning from its meaning in section 38(5) and section 43 and every reason why it should have the same meaning. In answer to a point taken by the third respondent that it would be surprising, if section 44(2)(a) applied to non-parties, that the DAC does not say so, Mr Lissack QC submitted that the surprise is the other way. Section 44(2)(a) is the successor of section 12(6)(d) of the Arbitration Act 1950 which did apply to non-party witnesses: see per Clarke J in Unicargo v Flotec Maritime (The Cienvik) [1996] 2 Lloyd’s Rep 395 at 404 rhc. If section 44(2)(a) was taking away that existing right, one would have expected the DAC to say so, which it did not.
    4. Mr Lissack QC submitted that the starting point for section 44 is not the consensual nature of the arbitration agreement but what powers the Court is to have. The opening words of subsection (1) were just making it clear that the provision was non-mandatory, so that the parties to an arbitration agreement can contract out of giving the Court the section 44 powers. Where the parties do not contract out, the Court has the powers, subject to the other subsections. Contrary to the submissions on behalf of the third respondent, subsection (1) does not limit the powers given to those which the Court has in relation to foreign proceedings. The Hague Convention and the 1975 Act were irrelevant. Focusing on what he described as the narrow question as to the scope of section 44(2)(a), irrespective of the scope of the other subsections, he submitted that subsection (2)(a) gave the Court the same power in relation to taking of evidence from a witness for an arbitration as the English Court would have in civil litigation before the English Courts. Because of section 2(3)(b) these powers could be deployed in aid of a foreign arbitration as well. One of the powers given to the Court in civil litigation was the power to order a deposition to be taken before an examiner under CPR 34.8 and, accordingly, Mr Lissack QC submitted that, whatever the scope of the other subsections, section 44(2)(a) combined with section 2(3)(b) meant that the Court had jurisdiction to make such an order in aid of the New York arbitration, as Moore-Bick J had held in Commerce & Industry Insurance.
    5. Thus he submitted that, on the correct answer to his narrow question, the appeal should succeed. Nonetheless, he maintained that there was a wider question as to whether Cruz City and DTEK were correctly decided. He referred in particular to Merkin & Flannery on the Arbitration Act 6th edition at 44.7.5 who are critical of those decisions. He submitted that those cases were essentially dealing with the scope of CPR 62.5(1) on service out of the jurisdiction and what was said about section 44 was obiterCommerce & Industry Insurance was not cited in Cruz City and in DTEK it was only cited in relation to section 2(3). Both judges were influenced by the consensual nature of arbitration, but section 44 was to do with the powers of the Court, not the powers of arbitrators.
    6. On behalf of the third respondent, Ms Angeline Welsh submitted that the opening words of section 44(1): “Unless otherwise agreed by the parties” point to the powers of the Court being intra-parties not against third parties. The appellants’ argument ignores this language and the paramount concept which lay behind the 1996 Act of party autonomy, enacted as one of the principles in section 1(b). This was also clear from section 44(4) which provides that other than in cases of urgency, the Court can only act with the permission of the tribunal or the agreement of the parties to the arbitration. Since a third party in the position of the third respondent was not a party to the arbitration and had no locus to address the tribunal as to whether such permission should be granted, the powers of the Court under the section were only those directed against the parties, not a non-party.
    7. This was also clear from section 44(5) which provides that the Court can only act to the extent that the tribunal “has no power or is unable for the time being to act effectively”. Ms Welsh submitted that this indicated that the powers which the Court was given mirrored those of the tribunal which could not make an order against a third party.
    8. The other subsection which clearly indicated that the section was not intended to confer powers on the Court to make orders against a third party was section 44(7) which limited the right of appeal to cases where the judge at first instance gave permission to appeal. Whilst this provision (which is replicated in a number of places in the Act) is perfectly understandable as between the parties to the arbitration, given party autonomy and the need for finality in arbitration, it would be quite unfair to deprive a third party of his normal “two bites of the cherry”, the opportunity to seek permission to appeal not just from the judge at first instance, but if he or she is refused permission, from the Court of Appeal itself.
    9. Ms Welsh submitted that the provision which was intended to give the Court powers in relation to the compulsion of evidence to the tribunal by non-party witnesses was section 43, which is only applicable where the arbitration was being conducted within the jurisdiction. That was a power to order a witness summons and did not extend to ordering evidence to be taken by deposition. She submitted that section 44(2)(a) was not intended to deal with compulsion of evidence. There was no mention of compulsion of evidence in the DAC Report in relation to section 44 at [214]. Furthermore, the DAC Report made clear at [25] in relation to section 2(3) the extension to foreign arbitrations was giving effect to the DAC recommendation that section 25 of the Civil Jurisdiction and Judgments Act 1982 should be extended to arbitration proceedings. That section dealt with interim relief (such as the grant of an injunction) but subsection (7) expressly excluded any provision for obtaining evidence.
    10. She submitted that the “taking of the evidence of witnesses” in section 44(2)(a) related only to letters of request, not to depositions. She recognised that the subsection would therefore be limited to outward letters of request to a foreign court in aid of an arbitration in this jurisdiction (as Sara Cockerill QC thought at [47] of DTEK) because, as Moore-Bick J held in Commerce & Industry Insurance at 1226-7 the subsection cannot apply to an inward letter of request from the arbitral tribunal since it was not a “court or tribunal” within the meaning of section 1 of the 1975 Act. Ms Welsh sought to address this issue of the limited effect which this construction, that the subsection was not concerned with compulsion of evidence, would place upon the subsection by submitting that the power under the subsection could be used where a witness was willing to give evidence but for example one of the parties to the arbitration sought to prevent the witness giving evidence because of a non-disclosure agreement or where someone was trying to intimidate a witness.
    11. Ms Welsh submitted that another reason why the subsection did not give the Court power to order examination by deposition is that the power under CPR 34.8 was a narrow power with a limited role under the Civil Procedure Rules. It would be surprising if this narrow power could be used to aid a foreign arbitration, in effect putting such an arbitration in a significantly better position as regards the taking of evidence here than a foreign court could be under the Hague Convention and the 1975 Act. If, contrary to her primary position, the subsection did give the Court power to order a deposition, that power should be limited in the same way as it would be in civil proceedings where it could only be ordered in English court proceedings, in other words it should be limited to domestic arbitrations.
    12. In relation to the issue of discretion raised by the second ground of the Respondent’s Notice, Ms Welsh submitted that the judge had applied the wrong test and should have applied a more stringent test, that the evidence was necessary for the determination of the arbitration, such as she submitted Males J had applied in relation to outward letters of request sought under section 44 in Silver Dry Bulk v Homer Hulbert Maritime [2017] EWHC 44 (Comm); [2017] 1 Lloyd’s Rep 154 at [52]-[53]. She submitted that if that test had been applied, the Court should have refused to make an Order even if it had jurisdiction to do so.

Discussion

    1. Like Males LJ, with whose judgment I agree, I prefer to decide this case on the narrow approach, that section 44(2)(a) does give the Court power to make an order for the taking of evidence by way of deposition from a non-party witness in aid of a foreign arbitration, whatever the scope of the other heads of the subsection and whether or not they also apply in relation to non-parties. I would prefer to leave the issue of whether Cruz City and DTEK were correctly decided as regards the heads of subsection 44(2) with which they were specifically concerned to another occasion when that issue arises directly on appeal.
    2. However, whatever the position under the other heads of the subsection, I am satisfied that section 44(2)(a) does give the court power to order the taking of evidence from a non-party for a number of related reasons. First, the wording of section 44(1) when read with section 2(3) and the definition of “legal proceedings” in section 82(1) makes it clear that, provided the other limitations built into the section, such as section 44(5), are satisfied, the English Court has the same powers under subsection (2)(a) in relation to arbitrations, wherever their seat, as it has in relation to civil proceedings before the High Court or the county court. There is simply no justification in the language of the Act for limiting the application of the subsection to domestic arbitrations as Ms Welsh submitted. That submission simply disregards, impermissibly, section 2(3).
    3. Second, the words “the taking of the evidence of witnesses” are apt as a matter of language to cover all witnesses, not just those who are a party to the arbitration. Indeed, as Males LJ points out in his judgment, in the context of modern commercial arbitration, it is rare for a witness also to be a party. Furthermore, as Mr Lissack QC correctly submitted, the statute clearly distinguishes between a “party” and a “witness” when it is necessary to do so: see section 38(5) and section 43(1). There is no basis for construing “witnesses” in section 44(2)(a) as synonymous with “parties”. Equally, there is no justification in the wording of the statute for limiting “witnesses” to those who are in the control of one or other of the parties. If Parliament had intended that limitation, it would have said so.
    4. Third, the powers which the English court has in relation to “the taking of the evidence of witnesses” in civil proceedings in the High Court or the county court include the power to order evidence to be given by deposition under CPR 34.8. There is nothing in the point that the English Court could not order a deposition in support of foreign court proceedings, but could only issue a letter of request under section 1 of the 1975 Act. Ms Welsh’s submission to that effect asks the wrong question: the question under section 44(2)(a) is not what power the English Court would have in relation to the taking of evidence from witnesses for the purpose of foreign court proceedings but what power it would have in relation to civil proceedings in the High Court or the county court, where clearly the Court’s powers are not in any sense limited by reference to the Hague Convention or the 1975 Act.
    5. Whilst this does produce the somewhat anomalous situation that the English Court can order a deposition in support of a foreign arbitration when it could not make an equivalent order in support of foreign court proceedings unless there was an inwards letter of request, that is not a reason for placing limitations on the statutory language which it will not bear. There is simply no justification for reading into “the taking of the evidence of witnesses” a limitation that it excludes depositions when the power to order a deposition is one of the powers the English Court would have in civil proceedings before the High Court or the county court. In any event, there may be less of an anomaly than appears at first blush given that (a) on the basis that a case where this form of order is sought is unlikely to be one of urgency, so that unless the parties are agreed, the party seeking to depose a witness will need to obtain the permission of the tribunal under section 44(4) to make an application; and (b) the Court always has a discretion under section 44 as to whether to make an Order under section 44(2) and, in the cases of a foreign arbitration has a specific discretion under section 2(3) not to make an Order if it considers it inappropriate to do so.
    6. Fourth, contrary to Ms Welsh’s submissions, it does not seem to me that the other subsections of section 44 point against the Court having the power to make an Order against third parties under section 44(2)(a). The opening words of section 44(1) and the terms of section 44(4) provide what are, in effect, thresholds or gateways which have to be satisfied before the Court can exercise its powers, that the parties have not agreed to contract out of the Court having the powers and that, save in the case of urgency or agreement between the parties, any application to the court is made with the permission of the tribunal. However, if the thresholds or gateways are satisfied, as they were in this case, there is nothing in any of the subsections relied upon which restricts the power of the Court to make whatever Order in relation to the taking of evidence from witnesses it could have made in civil proceedings in the High Court or the county court, which clearly includes the power under CPR 34.8 to make an Order for evidence to be taken by deposition.
    7. There is some force in Ms Welsh’s point that if the Court has the power under section 44(2)(a) to make an Order against a non-party, it is something of an anomaly that there is a limitation in section 44(7) on the rights of appeal of a non-party. However, in practice, that anomaly may be more apparent than real, in the sense that where a third party objecting to the making of an Order against him or her under section 44(2)(a) raises an issue of principle, as in the present case, the judge at first instance is likely to grant permission to appeal, as Foxton J did. In any event, even if there is this anomaly, it is not such as to justify giving section 44(2)(a) the restrictive interpretation suggested on behalf of the third respondent.
    8. Fifth, Ms Welsh submitted that the power to order a deposition should be narrowly construed because the power is generally only used in limited circumstances, such as where the witness is unfit or otherwise unable to attend the trial and, even then, in the modern context, it is more common for such evidence to be given by video-link. I see no reason to construe the power narrowly merely because it may be used in practice relatively rarely. The question whether to exercise the power in a particular case is one which goes to discretion not to jurisdiction. Nothing in the wording of CPR 34.8 itself suggests that it bears or should bear the narrow construction for which Ms Welsh contends. Nor is there anything in the point that an Order under CPR 34.8 is not coercive unless a subsequent Order is made under CPR 34.10. Both forms of Order are within the powers that the Court has in relation to civil proceedings in the High Court or the county court.
    9. Sixth, if the subsection does not permit the Court to order the taking of evidence by deposition, the subsection has little or no content in the context of a foreign arbitration. It cannot apply to inwards letters of request from the foreign arbitral tribunal for the reasons given by Moore-Bick J in Commerce & Industry Insurance. Whilst it could apply to an outward letter of request to a foreign court in support of arbitration proceedings in England and Wales, it is difficult to see in what practical situation such a letter of request would ever be made in support of an arbitration seated abroad. Ms Welsh suggested the subsection would cover orders preventing a party from interfering with witnesses or ordering a party to permit a witness to give evidence who had signed a non-disclosure agreement. However, neither of those situations is commonplace and, as Males LJ says in his judgment, there is no reason to think Parliament had them in mind in enacting subsection (2)(a).
    10. Seventh, although there is force in Ms Welsh’s submission that the effect of the narrow approach is that subsection (2)(a) applies to non-parties, whereas the other heads of the subsection may not, I do not consider that is a sufficient reason not to conclude that subsection (2)(a) does apply to non-parties, which it clearly does. Any apparent inconsistency between the various heads of subsection (2) may be explained by the different language of those heads and, as I have said, I would prefer to leave the issue of the scope of the other subsections and whether Cruz City and DTEK were correctly decided to an appeal where that issue arises directly.
    11. Finally, I am fortified in the conclusion which I have reached by the fact that the same conclusion was reached by Moore-Bick J in Commerce & Industry Insurance, the only decision at first instance which deals directly with the question of whether the Court can make an Order under section 44(2)(a) for the deposition of non-party witnesses to be taken under CPR 34.8 in support of a foreign seated arbitration. The judge held that he had jurisdiction to do so, albeit that he exercised his discretion against making an Order on the facts of that case. Although that case is not, of course, binding on this Court, I find its reasoning on the issue of jurisdiction compelling.
    12. As Moore-Bick J noted at 1328E, the power which the Court had to order a witness to be deposed by an examiner was a long-standing power now contained in CPR 34.8. He went on to consider at 1328G-H how the matter had been dealt with by section 12(6)(d) of the Arbitration Act 1950 noting that it referred explicitly to examination of witnesses before an officer of the High Court or any other person. He continued at 1328H-1329C:

“The language of section 44 of the 1996 Act is, if anything, broader and is apt, in my judgment, to include an order for the examination of a witness in order to provide evidence in the form of a deposition for use at the hearing.

It appears from the witness statement of Mr David Kroeger, one of the lawyers acting for Viking in the arbitration, that arbitrators in New York have the power under section 7 of the United States Federal Arbitration Act to subpoena witnesses to give deposition evidence in the form of oral testimony. They may also have the power to direct that a person gives evidence to an examiner, although nothing is said about that.

However, the fact that the witnesses in the present case are resident in this country means that they are beyond the effective jurisdiction of the tribunal. The requirements of subsection (5) of section 44 are therefore met. I am satisfied, therefore, that the court does have jurisdiction to make an order for the examination of witnesses in support of arbitration proceedings, even though the seat of the arbitration is in New York and the curial law of the arbitration is the law of New York. However, the court has a discretion to refuse to exercise its powers and it does not follow that it would be appropriate to make such an order.”

    1. In concluding that, if he had had jurisdiction, he would have made an Order under section 44(2)(a), the judge clearly considered the question of whether, because section 2(3)(b) was in play, it was appropriate to make an Order (see [35] of the judgment). In exercising his discretion, he applied the test set out by Moore-Bick J in Commerce & Industry Insurance at 1330C-D which I quoted at [17] above. There is nothing in Ms Welsh’s suggestion that the judge erred in the exercise of his discretion by not applying a more stringent test. He not only applied the right test, but applied the test which Ms Welsh invited him to apply as set out by Moore-Bick J, as is apparent from her skeleton argument before Foxton J.
    2. As I noted at [19] above, the Order which the judge would have made would have been for a witness statement and evidence by video-link. In the event, the parties have agreed the broad terms of an Order pursuant to which the evidence of the third respondent will be taken by way of deposition before an examiner of the Court in this jurisdiction and videotaped so that it available to the arbitral tribunal.

Conclusion

    1. Accordingly, I would allow the appeal on the narrow approach, concluding that, whatever the position is as regards Orders against non-parties under the other heads of subsection 44(2), the Court does have jurisdiction under section 44(2)(a) to make an Order for the deposition of the third respondent as a non-party and I would make an Order for the examination of the third respondent by way of deposition before an examiner of the Court. I should emphasise that in reaching that conclusion, I intend no criticism of the judge who, for understandable reasons, followed the reasoning of Cruz City and DTEK.

Lord Justice Newey

    1. I agree with both judgments.

Lord Justice Males

    1. I agree that this appeal must be allowed. Because the judge decided, against his own inclination, that he should follow a decision of mine at first instance, I will explain my reasons in my own words.

Cruz City and DTEK

    1. The judge was faced with two recent decisions of the Commercial Court in which it had been held that orders under section 44 of the Arbitration Act 1996 could only be made against a party to the arbitration. The first of these was my decision in Cruz City 1 Mauritius Holdings v Unitech Ltd [2014] EWHC 3704 (Comm), [2015] 1 Lloyd’s Rep 191. The issue in the case was whether the court had jurisdiction to make a freezing order in aid of enforcement of a London arbitration award against subsidiaries of the award debtor against whom no substantive claim was asserted and who had no presence or assets within the jurisdiction; and, for that purpose, whether those subsidiaries could be served pursuant to CPR 62.5(1)(c) on the basis that the claim form sought a “remedy … affecting an arbitration (whether started or not), an arbitration agreement or an arbitration award”. I held that it did not have such jurisdiction. Although it was not necessary for my decision, I expressed the view obiter at [47] that “the better view is that section 44 does not include any power to grant an injunction against a non-party” to the arbitration. While that statement was in terms limited to the grant of an injunction under section 44(2)(e), it is fair to say that my reasoning at [48] to [50] was equally applicable to all the different paragraphs of section 44(2) without distinguishing between them.
    2. The second case was DTEK Trading SA v Morozov [2017] EWHC 1704 (Comm), [2017] Bus LR 628. The issue in that case was whether the court had jurisdiction under section 44(2)(b) to make an order for the preservation and inspection of a document in the possession of a third party in Ukraine. After considering and rejecting various criticisms of my decision in Cruz City, Sara Cockerill QC, sitting as a Deputy Judge of the High Court, held that it did not. She indicated, however, that she would in any event have refused to make an order as a matter of discretion.

The judge’s approach

    1. In the present case the judge indicated at [18] that he could see “considerable force in the arguments advanced in favour of the view that the jurisdiction under section 44 could, in an appropriate case, be exercised against a non-party” and indicated in his reasons for granting permission to appeal that, if there had been no prior authority, he would have been inclined to accept those arguments. Nevertheless he decided at [34] that, as there were persuasive arguments either way, he should follow the reasoning in Cruz City and DTEK and hold that the court did not have jurisdiction under section 44 to make an order against a non-party to the arbitration agreement, giving permission to appeal so that the point could be authoritatively determined by this court.
    2. In my view the judge cannot be criticised for taking this course, which in the circumstances was obviously sensible.

The narrow question

    1. In this court the submissions of Mr Richard Lissack QC for the appellants have focused on paragraph (a) of section 44(2), which did not feature prominently (if at all) in the arguments in Cruz City and DTEK, concerned as they were with paragraphs (e) and (b) respectively. His primary submission (which he described as the “narrow question”) was that, whatever the position may be as regards other paragraphs of subsection (2), section 44(2)(a) permits a court to make an order for the taking of evidence of a non-party witness located within its jurisdiction in support of a foreign-seated arbitration.
    2. I see the force of the point made by Ms Angeline Welsh for the third respondent, which the judge accepted at [23], that in this respect there is no sufficient ground to distinguish between the various powers listed in the different paragraphs of subsection (2). Nevertheless I would allow this appeal on the basis that section 44(2)(a) does apply to taking the evidence of a witness who is not a party to the arbitration. I see no reason to doubt the actual decisions in Cruz City and DTEK, but I would reserve my opinion whether their reasoning on this point is correct as regards the other paragraphs of section 44(2). There are, in my view, strong arguments either way and it may be that the position varies as between the various paragraphs of subsection (2).

Section 44(2)(a) – “taking of the evidence of witnesses”

    1. The considerations which have weighed with me in reaching the conclusion that section 44(2)(a) enables evidence to be taken from a witness who is not a party to the arbitration are as follows.
    2. First and obviously, subsection (2)(a) is concerned with taking the evidence of witnesses. But it will be relatively rare, at least in commercial arbitrations, for a witness also to be a party. That will only be the case where an individual is a party to the arbitration agreement. The subsection draws no distinction between witnesses who are under the “control” of a party, whether because they are employees or for any other reason, and those who are not, while even those who are under the control of a party may nevertheless be reluctant to give evidence. So the paragraph is clearly directed towards obtaining the evidence of individuals who are not parties to the arbitration. It would make no sense to conclude that Parliament intended this paragraph to apply only when an individual happens to be a party to the arbitration. Indeed, in such circumstances, invoking the power of the court would be unnecessary or impossible. Plainly paragraph (a) is not there to enable one party to go to court to obtain either his own evidence or the evidence of the other party.
    3. Second, subsection (1) must be read in the light of the fact that by virtue of section 2(3) it applies to foreign-seated as well as domestic-seated arbitrations. It is also necessary to have regard to the definition of “legal proceedings” in section 82 of the Act. Bearing these points in mind, subsection (1) can be understood as providing that (with the inserted words italicised):

“Unless otherwise agreed by the parties, the court has for the purposes of and in relation to arbitral proceedings anywhere the same power of making orders about the matters listed below as it has for the purposes of and in relation to legal proceedings in the High Court or County Court.”

    1. It is therefore necessary to ask what powers the court has as regards “the taking of the evidence of witnesses” for the purpose of civil proceedings in the High Court or the County Court in this country. Undoubtedly one such power is the power in CPR 34.8 to order that a witness’s evidence be obtained by way of a deposition before a judge or an examiner of the court. It is fair to say (cf. Cockerill, The Law & Practice of Compelled Evidence (2011), para 1.08) that this power is generally used in limited circumstances, typically where the witness is unfit or otherwise unable to attend the trial, and that the norm is for witnesses to give their evidence before the judge at the trial, either by attending in court or by video link. Ms Welsh submitted that the power to order a deposition under CPR 34.8 should as a result be narrowly construed. I do not accept this submission. It is more accurate to say that the power is a broad power, used in practice in limited circumstances, and that the court has a discretion, subject to the provisions of CPR 34.8 and 34.9, to determine the circumstances in which it should be exercised.
    2. Thus on the plain language of the section, if the court is to have the same powers of making orders about the taking of a witness’s evidence for the purpose of an arbitration as it would have for the purpose of High Court proceedings, that must include the power to order a deposition. The fact that the court also has other powers, such as the power to issue a letter of request seeking the assistance of a foreign court to obtain the evidence of a witness present within the jurisdiction of that court, which does not require the court to make an order against the witness, does not detract from this conclusion.
    3. I can see no reason why the court should not have the power to order the deposition of a witness in support of a domestic arbitration. It is possible to imagine circumstances in which it would be useful to do so – for example, if a reluctant witness was unwell or about to travel abroad but the arbitrators were not available to hear his evidence themselves. The question then arises whether the position should be different when the arbitration has a foreign seat.
    4. Ms Welsh submitted that in the case of foreign-seated arbitral proceedings, the court has no power to compel a witness here to give evidence by way of deposition. She relied on the fact that a witness in this jurisdiction can only be compelled to give evidence in support of foreign proceedings outside the European Union in accordance with the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (implemented here by the Evidence (Proceedings in Other Jurisdictions) Act 1975). She pointed out that, as held in Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547, this Act provides a complete code in that respect. As Lord Diplock put it at page 632G:

“… the jurisdiction and powers of the High Court to make the orders that are the subject of this appeal are to be found in sections 1 and 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 and nowhere else.”

    1. Thus the English court would have no power to order a witness to give evidence by deposition in support of foreign court proceedings otherwise than pursuant to an incoming letter of request and, in that event, the evidence would be subject to the limitations (and the witness would have the protections) set out in the 1975 Act. Ms Welsh submitted that the position could be no different when the evidence is to be given, not in support of foreign court proceedings, but in support of a foreign-seated arbitration. That is a formidable submission, but in my judgment it poses the wrong question. Under section 44 of the Arbitration Act, the question is not whether the English court would have power to order a deposition outside the scope of the 1975 Act in support of foreign court proceedings, but rather whether it has power to order a deposition in support of legal proceedings in this country. That is the necessary consequence of the correct understanding of section 44(1) as I have explained it above.
    2. The answer is that the court does have such a power, which is contained in CPR 34.8. Whether that power should be exercised and in what terms are matters for the court’s discretion, which pursuant to section 2(3) of the Arbitration Act will include consideration of whether the fact that the arbitral seat is abroad makes it inappropriate to do so. There is also scope, if necessary, to build into any order protections for the witness equivalent to those contained in the 1975 Act. But these are matters of discretion, not jurisdiction.
    3. In this regard it is relevant to note that the conduct of an examination when the court exercises its power under CPR 34.8 is governed by CPR 34.9. This includes provision that:

“(1) Subject to any direction contained in the order for examination, the examination must be conducted in the same way as if the witness were giving evidence at a trial.”

    1. It follows that the only questions which may be asked are those calculated to elicit admissible evidence and that the witness will be entitled, if appropriate, to rely on such matters as legal professional privilege and the privilege against self-incrimination.
    2. I recognise that to hold that section 44(2)(a) enables the court to order a deposition in support of a foreign-seated arbitration when it would have no power to make an equivalent order in support of foreign court proceedings in the absence of an incoming letter of request means that the court has in this regard a more extensive power to support a foreign-seated arbitration than it has to support foreign court proceedings. This was aptly described by Mr Lissack as one of the “rough edges” which would exist on either party’s interpretation of section 44. However, this anomaly (if that is what it is) does not in my view undermine the conclusion which I have reached. The Arbitration Act provides sufficient protection against misuse of the power to order a deposition in the need for the court to consider the appropriateness of making an order in the case of a foreign-seated arbitration (section 2(3)), in the requirement contained in section 44(4) for the permission of the tribunal or the agreement of the parties before an application can be made, and in the court’s discretion whether to make an order in any particular case.
    3. Third, if section 44(2)(a) does not enable the court to order the taking of a witness’s evidence by deposition, it is difficult to see to when it does apply in the case of a foreign-seated arbitration. It is not concerned with securing the attendance of a witness to give evidence before the tribunal, which is dealt with separately in section 43 (which also applies to foreign-seated arbitrations albeit with the requirement, whatever precisely it may encompass, that “the arbitral proceedings are being conducted” here). It may enable the court to issue an outward letter of request to a foreign court in support of arbitration proceedings here (cf. Silver Dry Bulk Co Ltd v Homer Hulbert Maritime Co Ltd [2017] EWHC 44 (Comm), [2017] 1 Lloyd’s Rep 154), but it would not enable the court to give effect to an incoming letter of request pursuant to the Evidence (Proceedings in Other Jurisdictions) Act 1975. That Act does not apply to a request made by a private arbitral tribunal, as held by Moore-Bick J in Commercial & Industry Insurance Co of Canada v Certain Underwriters at Lloyd’s [2002] 1 WLR 1323 at pages 1236F to 1237D. Moreover, pursuant to section 1 of the 1975 Act the incoming letter of request procedure is only available when the evidence to be obtained is for the purpose of civil proceedings “before the requesting court”, which rules out a request in order to obtain evidence for the purpose of arbitral proceedings.
    4. In an attempt to give content to paragraph (a) consistently with her submissions, Ms Welsh submitted that there might be some applications which would be made against the other party to the arbitration and which could be regarded as falling within subsection 2(a). She gave as examples an order to prevent a party from interfering with witnesses or a case where a witness was willing to give evidence but was unable to do so because of a non-disclosure agreement with the other party to the arbitration. I am not convinced that these examples would be orders about “the taking of the evidence of witnesses” or that they are cases where the arbitral tribunal would have no power to act or would be unable to act effectively (see section 44(5)). However that may be, however, I see no reason to think that Parliament had in mind these somewhat niche cases in enacting section 44(2)(a).
    5. I would accept that the fact that section 44(2)(a) had little or no real content in the case of a foreign-seated arbitration would not justify giving it a strained interpretation. But to interpret the paragraph as enabling the court to order the deposition of a witness in such a case involves no strain upon its language. Rather, as I have sought to show, this is its natural meaning.
    6. Fourth, there is authority, albeit not binding upon us, that section 44(2)(a) of the Arbitration Act does enable the court to order the examination of a witness in this country in order to provide evidence in the form of a deposition for an arbitration abroad. It was so held by Moore-Bick J in Commercial & Industry Insurance (which, not surprisingly, was not cited in Cruz City), albeit that he refused as a matter of discretion to make an order in that case:

“The language of section 44 of the 1996 Act is, if anything, broader [than the language of section 12(6)(d) of the 1950 Act] and is apt, in my judgment, to include an order for the examination of a witness in order to provide evidence in the form of a deposition for use at the hearing. …

However, the fact that the witnesses in the present case are resident in this country means that they are beyond the effective jurisdiction of the tribunal. The requirements of subsection (5) of section 44 are therefore met. I am satisfied, therefore, that the court does have jurisdiction to make an order for the examination of witnesses in support of arbitration proceedings, even though the seat of the arbitration is in New York and the curial law of the arbitration is the law of New York. However, the court has a discretion to refuse to exercise its powers and it does not follow that it would be appropriate to make such an order.”

    1. The witnesses in question were not parties to the arbitration and were not even employed by the parties, but were former employees of brokers who were alleged to have acted as agents of parties to the arbitration.

Discretion

    1. The judge indicated that, if he had held that there was jurisdiction to make an order under section 44(2)(a), he would have exercised his discretion do so. It is plain that he had regard to the question of appropriateness under section 2(3) of the Act and that he applied the test indicated by Moore-Bick J in Commerce & Industry Insurance as to the evidence which should be adduced in support of such an application against a reluctant witness:

“This should normally include an explanation of the nature of the proceedings, identification of the issues to which they give rise and grounds for thinking that the person to be examined can give relevant evidence which justifies his attendance for that purpose. The greater the likely inconvenience to the witness, the greater the need to satisfy the court that he can give evidence which is necessary for the just determination of the dispute.”

    1. Ms Welsh submitted that the judge applied the wrong test and that he should have been more demanding in requiring the appellants to demonstrate that the witness’s evidence would have an important bearing on the outcome of the arbitration. In my judgment there is nothing in this point.
    2. However, it should be noted that the order which the judge would actually have made would not have been that sought by the appellants. Rather it would have been “along the broad outlines” of an open offer made by the Third Respondent in a letter dated 17th January 2020. This offer was to the effect that (1) the Third Respondent would be provided with various documents relating to the arbitration, (2) he would then produce a witness statement addressing the permitted topic of enquiry and any other subjects he wished to include, and (3) he would then give evidence by video link to the arbitral tribunal or, if the tribunal did not agree to this procedure, before an examiner of the court.
    3. In the event the parties have been able to agree, with only limited points of dispute, what order should be made if we decide (as we have done) that the court has power to make an order under section 44(2)(a). The order which they have agreed will enable the Third Respondent’s evidence to be given before an examiner and for his evidence to be videotaped so that it will be available to be viewed by the arbitral tribunal.

Disposal

  1. I would therefore allow the appeal and would make an order for the examination of the Third Respondent by way of deposition before an examiner of the court.
  2. I record my thanks to counsel for the quality of their submissions and to the arbitral tribunal in New York for deferring the closing of the evidentiary phase of the arbitration to enable this appeal to be heard and judgment to be given.

Madison Pacific Trust Ltd v Shakoor Capital Ltd & Anor [2020] EWHC 610 (Ch) (16 March 2020)

Neutral Citation Number: [2020] EWHC 610 (Ch)
Case No: FL-2019-000008

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
FINANCIAL LIST (ChD)

7 Rolls Building
Fetter Lane
London, EC4A 1NL
16 March 2020

B e f o r e :

Mr Justice Zacaroli
____________________

Between:

MADISON PACIFIC TRUST LIMITED
Claimant
– and –
 
(1) SHAKOOR CAPITAL LIMITED
(2) JOINT-STOCK COMPANY COMMERCIAL BANK PRIVATBANK
Defendants

____________________

Sonia Tolaney QC and Nicholas Sloboda (instructed by Boies Schiller Flexner LLP) for the Claimant
Adrian Beltrami QC and Louise Hutton (instructed by Dechert LLP) for the First Defendant
David Wolfson QC, Simon Atrill and Nick Daly (instructed by Quinn Emanuel Urquhart & Sullivan UK LLP) for the Second Defendant

Hearing dates: 27 and 28 February 2020
____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

Mr Justice Zacaroli:

Introduction

    1. This is an application by the claimant, Madison Pacific Trust Limited (the “Trustee”) as trustee of two series of notes (the “Notes”) issued by UK SPV Credit Finance Plc (the “Issuer”), for directions.
    2. The Issuer is an orphan special purpose vehicle, established for the purpose of (inter alia) issuing the Notes. The first series of Notes (the “2010 Notes”) was issued pursuant to a trust deed dated 24 September 2010 (the “2010 Trust Deed”). The 2010 Notes were in the aggregate amount of US$200 million and were originally due 23 September 2015, but the maturity date was extended to 23 January 2018 (and in August 2016 a 20% amortisation payment was made). The second series of Notes (the “2013 Notes”) was issued pursuant to a trust deed dated 28 February 2013 (the “2013 Trust Deed”). The 2013 Notes are in the aggregate amount of US$175 million and were due 28 February 2018.
    3. The funds raised upon the issuance of both series of Notes were advanced by the Issuer to the second defendant, Joint Stock Company Commercial Bank PrivatBank (“PrivatBank”), pursuant to (1) a loan agreement dated 17 September 2010, relating to a loan of US$200 million (the “2010 Loan Agreement”) and (2) a loan agreement dated 25 February 2013 relating to a loan of US$175 million (the “2013 Loan Agreement”).
    4. The Issuer has charged and assigned by way of security all of its interest under the Loan Agreements in favour of the Trustee.
    5. The Notes are all limited recourse, payment being dependent upon the extent to which recoveries are made under the Loan Agreements. In particular, by clause 2.4 of the Trust Deed, the obligations of the Issuer are “solely to make payments of amounts in aggregate equivalent to each sum actually received by or for the account of the Issuer from [PrivatBank]”. Noteholders were therefore reliant “solely and exclusively upon [PrivatBank’s] covenant to pay under the Loan Agreement and the credit and financial standing of [PrivatBank]”.
    6. The maturity date in respect of both series of Notes has now passed, without payment of principal having been made to the Noteholders. That is a direct result of PrivatBank having failed to repay the amounts due under either of the Loan Agreements.
    7. The Loan Agreements are in materially similar terms. They each contain a provision that “any dispute arising out of or connected with” the Loan Agreement “including a dispute as to the validity, existence or termination [of the Loan Agreement] or the consequences of its nullity … shall be resolved … by arbitration in London … in accordance with the LCIA Rules.”
    8. On 8 November 2017, the Trustee, on its own behalf and on behalf of the Issuer, served two requests for arbitration seeking awards ordering PrivatBank to pay the amounts due under the Loan Agreements. The Trustee acted following instruction from and indemnification by certain holders of interests in the Notes (the “Instructing Group”).
    9. PrivatBank advanced two defences: first, that as a result of the nationalisation of PrivatBank in Ukraine and the subsequent ‘bail-in’, as and when the bail-in is recognised by the Bank of England pursuant to the Banking Act 2009 the obligations of PrivatBank under the Loan Agreements will have been discharged; and, second, that the Loan Agreements are unenforceable for illegality perpetrated by two former owners of PrivatBank (the “Former Owners”).
    10. In partial awards published in the arbitration relating to each Loan Agreement on 13 June 2019 (the “Awards”), the arbitration tribunal (the “Tribunal”) concluded that (subject to the bail-in defence, the determination of which had been postponed) PrivatBank would be required to pay only certain amounts due under the Loan Agreements, for the following reasons:

i) The Loan Agreements were indeed tainted by illegality. That illegality also infected the Notes to the extent that interests in the Notes had been acquired by the Former Owners or entities under their control.

ii) Many of those who had acquired interests in the Notes (including the Instructing Group), on the other hand, were innocent. Not only were they not parties to the illegality, they were victims of it.

iii) The public policy considerations that underlay the defence of illegality under English law required “…a court or tribunal to act to prevent recovery where to allow the claim would be in effect to endorse the fraud and assist in the achievement of the fraudulent purpose. Equally, it can readily be seen that a court or tribunal should aim to protect innocent investors from fraud who would be damaged despite being victims of the fraud if the claims brought for their benefit were to be refused.”

iv) The difficulty the Tribunal faced, in these circumstances, was that the entities actually suing to recover under the Loan Agreements were the Issuer and, as holder of a security interest, the Trustee. As between the Issuer and Trustee (on the one hand) and PrivatBank (on the other) illegality would appear to operate as a binary defence: each Loan Agreement was either enforceable as a whole, or not at all.

v) The Tribunal considered whether there were other ways of ensuring that innocent holders of interests in the Notes could recover, while preventing the Former Owners and their associated entities from recovering (including applications by the Trustee to court in relation to the proceeds of any repayment of the Loans), but decided that “stopping the funds at source is in the view of the Tribunal a much more attractive and economic solution if it can be achieved.”

    1. Accordingly, the Tribunal fashioned its Awards as follows:

i) PrivatBank had no liability and should not be required to make any payment to the claimants (the Issuer and the Trustee) “in a sum equal to” the principal value of the Notes which as at 14 June 2019 (the “Relevant Date”) were held for the benefit of the Former Owners or entities owned or controlled by them;

ii) PrivatBank was required to pay to the Trustee “an amount equal to the aggregate principal value of the Notes” held as at the Relevant Date for the benefit of the Instructing Group;

iii) The Trustee was required (by paragraph 5.2(3) of the operative part of the Awards) to pay to each member of the Instructing Group pro rata the amount of its respective interest in the Notes; and

iv) A mechanism was put in place for those persons who held an interest in the Notes but fell within neither (i) nor (ii) above, which entailed notices being published requesting such persons to make themselves known to the Trustee and provide information and evidence within 60 days. PrivatBank was given the opportunity to object to any payment being made to such persons, on the grounds that their claims are (on the findings of the Tribunal) infected with illegality. Any dispute was to be resolved by the Tribunal, and PrivatBank was required to pay to the Trustee only where PrivatBank’s objection was not upheld;

v) The Trustee was required (by paragraph 6.3(3) of the operative part of the Awards) to pay to each entity referred to in (iv) above where either PrivatBank raised no objection, or the objection was not upheld;

vi) The Tribunal stated, however, that nothing in the Awards required the claimants to make any payment under paragraph 5.2(3) or paragraph 6.3(3) until the Trustee had had an opportunity to make an application to a judge of the High Court, seeking directions “in order to confirm that it will have no further liability under the Trust Deed or otherwise as a result of making the payments envisaged by [the Awards]”. In the event that the Court declines to give such confirmation, then the operative parts of the Awards will cease to have effect and the Tribunal retains jurisdiction to deal with the matters raised by the claim and the illegality defence as it may consider appropriate.

    1. This is the application by the Trustee which the Tribunal indicated should be made.

The holding structure of the Notes

    1. In order properly to explain the problem which the Tribunal sought to resolve by its Awards, and the issues which arise on this application, it is necessary to set out in some detail the structure through which the Notes are held, and the relevant terms of the Trust Deeds. I will do this by reference to the 2010 Trust Deed, but there are no material differences from 2013 Trust Deed.
    2. In relation to the 2010 Notes only one Note has been issued, a permanent global note which is deposited with a common depositary who holds it on behalf of Euroclear and Clearstream (the “Clearing Systems”). The Clearing Systems facilitate trading in the Notes by crediting interests in the global note to account holders, or “participants” in the Clearing Systems.
    3. The participants hold such interests on behalf of persons in the market who wish to acquire beneficial interests in the global note, the ultimate account holders (“UAHs”). The UAHs may hold their interest directly with a participant in the Clearing System or through one or more intermediaries. All dealings in interests in the notes take place by way of book entries, in the books either of the Clearing Systems, the participants or intermediaries.
    4. As a matter of English law, there is a chain of contractual and proprietary relationships between the Issuer and each UAH, as follows (see, for example, Gullifer and Payne, Corporate Finance Law (2nd ed) at 389-390). The common depositary has contractual rights (set out in the global note, which incorporates the terms of the Trust Deed). The Clearing System has contractual rights against the common depositary; the participants have contractual rights against the Clearing Systems; and where there are no further intermediaries the UAH has contractual rights against the participant. If there are further intermediaries between the participant and the UAH, then each intermediary has contractual rights against the entity next above it (i.e. closer to the Issuer) in the chain.
    5. In addition, the contractual rights of each entity against the entity next above it in the chain are typically held on trust for the entity next below it in the chain. For example, a participant’s contractual rights against the Clearing System are held by it for the benefit of the intermediary next below it in the chain. The common depositary’s contractual rights under the global note against the Issuer are thus held via a trust and series of sub-trusts for each UAH.
    6. In parallel, there is a similar chain of ownership in relation to the security structure, as follows:

i) By clause 2.3 of the Trust Deed, the Issuer covenanted to pay to or to the order of the Trustee amounts corresponding to principal and interest in respect of the Notes, and the Trustee agreed to hold the benefit of that covenant on trust for the benefit of itself and the Noteholders.

ii) By clause 4 of the Trust Deed, the Issuer charged and assigned to the Trustee, for the benefit of itself and the Noteholders all of the Issuer’s rights, interests and benefits in and to the Loan Agreement. This was as security for all sums due under the Trust Deed (in particular the covenant of the Issuer to the Trustee in clause 2) and the Notes.

iii) The immediate beneficiaries of the trust of the security are the Noteholders, in this case consisting only of the common depository as holder of the global note. It holds that interest on a sub-trust for the Clearing Systems, who hold on a sub-trust for the participants and so on down the chain to the UAH.

    1. While the Trustee strictly speaking holds the benefit of the security for the common depositary (as the sole Noteholder) alone, the terms of the global note recognise this sub-trust structure by entitling the Trustee “to the extent it considers it appropriate to do so” to have regard to information provided by the Clearing Systems as to the identity of accountholders, and to “consider such interests on the basis that such accountholders were the permanent holder of this Permanent Global Note.”
    2. The arbitration proceedings were brought by the Trustee both in its own name and in the name of the Issuer (as permitted by clause 4.8.3 of the Trust Deed) by way of enforcement of the security.
    3. As such, any sums received from PrivatBank represent “moneys received by [the Trustee] … in connection with the enforcement or realisation of the Security Interests” within the meaning of clause 8.1 of the Trust Deed. Accordingly, they must be applied pursuant to the terms of the payment waterfall set out in clause 8.1, as follows:

“8.1.1 first, in payment or satisfaction of the costs, charges, expenses and liabilities incurred by the Trustee in or about the preparation, execution and performance of the trusts of this Trust Deed (including remuneration of the Trustee and of any Appointee appointed hereunder) and incurred by the Trustee or a Receiver (and any Appointee) in the realisation or enforcement of the Security Interests;

8.1.2 secondly, in or towards payment pari passu and rateably of all arrears of amounts corresponding to principal and interest remaining unpaid in respect of the Notes; and

8.1.3 thirdly, the balance (if any) in payment to the Issuer …”

The issues raised by this application

    1. The principal form of relief sought in the Claim Form by the Trustee is an order that:

“The Trustee is at liberty to make payments to or at the direction of the Noteholders (as that term is used in the Trust Deeds) or Ultimate Account Holders (as that term is used in the Awards) in accordance with the payment scheme set out at operative paragraphs 5 to 9 of the Awards.”

    1. Alternatively, it seeks an order that:

“The Trustee shall not be liable to any Noteholder, Ultimate Account Holder or other direct or indirect beneficiary under the Trust Deeds by reason of the making or withholding of payments in accordance with the payment scheme [set out at paragraphs 5 to 9 of the Awards]”

    1. I will refer to the UAHs to whom paragraphs 5.2(3) and 6.3(3) of the Awards require payment to be made as the “Entitled UAHs”. I will refer to those UAHs to whom the Awards preclude any payment being made as the “Related UAHs”.
    2. By order of Mann J dated 20 November 2019, the first defendant, Shakoor Capital Limited (“Shakoor”) was appointed to represent the Instructing Group and all other Entitled UAHs. The Trustee has sent notice of this application to the Clearing Systems, for onward transmission to UAHs, requesting UAHs to state whether they wished to participate in the application or otherwise set out their views. Aside from one UAH which initially indicated an intention to appear but, having sold its interest in the Notes, no longer wishes to do so, no UAH has indicated an intention to participate in the application, made written representations, or appeared on the hearing of the application.
    3. The Trustee was represented before me by Sonia Tolaney QC and Nicholas Sloboda. Shakoor was represented by Adrian Beltrami QC and Louise Hutton. PrivatBank was represented by David Wolfson QC, Simon Atrill and Nick Daly. The principal submissions in favour of the directions were made by Mr Beltrami. These were adopted by Mr Wolfson, who made further points in support. Ms Tolaney took an initially neutral stance, but in reply made such arguments as she considered could be made against the directions, for the purposes of ensuring the Court was presented with at least some of the arguments that might be made on behalf of UAHs who might be prejudiced by the directions.
    4. The principal submission of Shakoor and PrivatBank is that on the true construction of the Trust Deed the Trustee is required to make the payments to the Entitled UAHs, either pursuant to clause 8.1.1 or clause 8.1.2 of the Trust Deed. If that argument succeeds, no question of breach of trust arises.
    5. In the alternative, I am asked to relieve the Trustee of any liability it may incur to any of the UAHs by reason of making payment in accordance with the terms of the Awards, whether pursuant to the inherent jurisdiction of the Court to supervise trustees (or its variant named after Re Benjamin [1902] 1 Ch 723) or pursuant to s.57 or s.61 of the Trustee Act 1925.

Clause 8.1.1

    1. Mr Beltrami contends that the payments required to be made pursuant to paragraphs 5.2(3) and 6.3(3) of the operative part of the Awards constitute “liabilities” incurred by the Trustee in or about the performance of the Trust and incurred by the Trustee in the realisation or enforcement of the Security Interests, within the meaning of clause 8.1.1 of the Trust Deed.
    2. The first step in the argument is that the word “liabilities” is a word of broad meaning, which extends to all legal obligations without limitation, save for that found in the clause itself, namely that they were incurred in or about the performance of the Trust and in the realisation or enforcement of the security. The clause is to be construed as at the time it was entered into and not against the background of the circumstances in which it is now sought to be applied. It is irrelevant, therefore that the drafter of clause 8.1.1 would not have envisaged circumstances such as those which the Trustee currently faces.
    3. Mr Beltrami submitted that there is no reason to limit its scope, for example, by reference to the identity of the person to whom the liability is owed. Nor is there any necessary link between clause 8.1.1 and clause 8.1.2: there is accordingly no reason to exclude from clause 8.1.1 liabilities on the basis that they are owed to persons for the benefit of whom payments in respect of the Notes are to be made under clause 8.1.2.
    4. I accept these submissions. The strongest argument to the contrary is that, given that payments to Noteholders in discharge of arrears due under the Notes are governed by clause 8.1.2, such payments cannot have been the intended subject-matter of clause 8.1.1. Even though the recipients of the payments, the UAHs, are not those entitled to any payment made pursuant to paragraph 8.l.2, payments made under that provision are for their benefit and, by clause 7.4 of the Trust Deed, the realisation of the security and application of the proceeds in accordance with clause 8 will have the consequence of satisfying the Issuer’s payment obligations under the Notes. In other words, however broad is the meaning of “liabilities” under clause 8.1.1, it cannot extend to a liability to Noteholders of amounts due under the Notes.
    5. Although at first sight this argument is compelling, I do not think it is right. The circumstances in which the Trustee might come under a liability within the meaning of clause 8.1.1 to pay either the Noteholders or UAHs any amount in respect of sums due under the Notes are extremely rare. Indeed, it is difficult to think of any circumstances in which that would be possible other than in a case materially similar to this one. That is because a liability to pay an amount due under the Notes could rarely be characterised as having been “incurred by the Trustee in the realisation or enforcement of the Security Interests”.
    6. It is capable of being so characterised in this case only because of the conditionality attaching to the payment to be made by PrivatBank to the Trustee under the Awards. The Awards have resulted from steps taken by the Trustee to enforce the security. As a result of the form of Awards fashioned by the Tribunal the Trustee can receive payment under the Awards only if it accepts the liability to pay the UAHs imposed upon it by paragraphs 5.2(3) and 6.3(3) of the operative parts of the Awards. Accordingly, that liability is properly characterised as having been incurred in or about the “performance of the trusts of this Trust Deed” and “the realisation and enforcement” of the security.
    7. For these reasons I accept that while it is counter-intuitive to consider that a liability to make payment for the benefit of the holders of the beneficial interests in the Notes could fall within clause 8.1.1, on the peculiar facts of this case, it would do so.
    8. The next question is whether the Trustee is in fact under such a liability as a consequence of the Awards. If looked at in isolation, paragraphs 5.2(3) and 6.3(3) of the operative parts of the Awards clearly impose obligations to make payment and would thus constitute a liability. They must, however, be read together with paragraphs 10 and 13. Paragraph 10 provides that:

“Nothing in this Partial Award shall require the Claimants [which includes the Trustee] to make any payment pursuant to paragraph 5 or 6.3(3) until the Trustee has had an opportunity to make an application seeking directions to make those payments from a Judge of the High Court in England and Wales, in order to confirm that it will have no further liability under the Trust Deed or otherwise as a result of making the payments envisaged by this Partial Award. For the avoidance of doubt, such application shall not be a challenge to the terms of this Partial Award or to the Trustee’s entitlement or obligation to make the payments anticipated hereunder.”

    1. Paragraph 13 provides that:

“If, on the final determination of such an Application, the Court declines to direct the Trustees to make the payments specified in this Partial Award, paragraphs 1 to 9 hereof shall cease to have effect in their entirety.”

    1. Mr Beltrami and Mr Wolfson both submitted that upon a proper analysis of the provisions of the Awards, the Trustee is under an existing liability to make the payments envisaged by paragraphs 5.2(3) and 6.3(3). They accept that the liability is contingent, on the outcome of the bail-in issue which has yet to be resolved by the Tribunal, and defeasible, because if this Court declines to direct the Trustee to make the payments specified in the Awards, then the Awards (and all payment obligations in them) simply fall away. Nevertheless, they submit, until such time as the event referred to in paragraph 13 arises, the Trustee is subject to the liabilities in paragraphs 5.2(3) and 6.3(3).
    2. I would accept that if the Trustee receives payment under the Awards then it will at that point be subject to a liability within the meaning of clause 8.1.1. I do not accept, however, that it is currently subject to such a liability. That is because the liability is also subject to the further contingency that the Trustee receives payment. Unless the Trustee receives payment from PrivatBank the obligations under paragraphs 5.2(3) and 6.3(3) of the operative parts of the Awards do not arise and there would in any event be no proceeds of enforcement to which clause 8.1 of the Trust Deed could apply.
    3. In this case, the enforcement process has been paused pursuant to that part of the Awards which permits the Trustee to seek directions from this Court. Even without the pause button being pressed in that way, I consider that the Trustee would in any event not be bound to receive payment from PrivatBank under the Awards. As with a judgment of a court, the fact that the Trustee has the benefit of it does not mean that (as between it and the judgment debtor) it is bound to receive payment. Such an issue would rarely arise and does so in this case only because of the condition attached to receiving payment which the Tribunal has imposed.
    4. Accordingly, although not quite framed in this way by the Awards or the Claim Form, I consider that the essential question for the Trustee is whether it is consistent with its duties under the Trust Deed to continue the enforcement action it has started, by accepting payment under the Awards and thus incurring the liability to apply all of the proceeds of that enforcement in favour only of the Entitled UAHs.
    5. That question is not answered by the conclusion (which, as I have noted, I accept) that once the proceeds of enforcement against PrivatBank are in its hands the Trustee will be subject to a liability, falling within clause 8.1.1 of the Trust Deed, to apply them in that way.
    6. I will return to this question after considering the alternative construction arguments advanced by the parties.

Clause 8.1.2

    1. As noted above, clause 8.1.2 provides for the application of funds received by the Trustee upon enforcement of the security to be applied in or towards payment “pari passu and rateably” of all “arrears” corresponding to the sums remaining unpaid in respect of the Notes.
    2. Mr Beltrami submitted that if the obligation to make payment does not fall under clause 8.1.1 then it falls under clause 8.1.2, on the basis that the only “arrears” to which that clause now applies are those in favour of the Entitled UAHs.
    3. The argument runs (in summary) as follows. “Arrears” means amounts that are both due and payable. That clearly encompasses amounts due and payable by the Issuer, but it is also capable of encompassing amounts due and payable by the Trustee. There are no amounts due and payable by the Issuer in respect of the Notes, because (i) (as a consequence of the limited recourse nature of the rights of Noteholders) the Issuer’s obligation to pay is conditional on it receiving funds from PrivatBank and, (ii) since the Awards require payment to be made only to the Trustee, the Issuer will not receive any funds from PrivatBank. The Awards do create an obligation on the Trustee, but that is limited to the obligation to pay the Entitled UAHs. Accordingly the only “arrears” that exist within clause 8.1.2 so far as the Trustee is concerned, are the sums due and payable by it to the Entitled UAHs.
    4. I do not accept this argument, which requires a strained and unnatural reading of clause 8.1. In my judgment, “arrears” in the context of clause 8.1.2 is not intended to be limited by reference to the extent to which amounts are actually payable by the entity required to make payment (whether it be the Issuer or the Trustee). Rather, it is intended merely to identify the amounts of principal and interest which are outstanding from the perspective of the Noteholders, i.e. which have not been repaid to the Noteholders. That is clear from the words of the clause itself, which links “arrears” to the amounts “remaining unpaid” in respect of the Notes.
    5. That view is reinforced by the fact that paragraph 8.1 is intended to apply wherever the Trustee has enforced its security over the debt due from PrivatBank. Whenever it does so, it will be the Trustee, and not the Issuer, that receives funds from PrivatBank. Thus, if Shakoor’s argument were correct, clause 8.1.2 could never be engaged where the Trustee takes such enforcement: there would be no “arrears” owed by the Issuer (as it had never received any funds so as to render amounts due under the Notes payable by it) and there would be no “arrears” owed by the Trustee (as nothing imposes any liability on the Trustee to make payment to the Noteholders from the proceeds of security other than clause 8.1.2 itself). The fact that Shakoor’s argument would prevent 8.1.2 operating at all in circumstances (recovery of proceeds of enforcement of security by the Trustee) that clause 8.1 as a whole was clearly intended to cover is a compelling indication that the argument is wrong.
    6. That conclusion is reinforced when it is appreciated that payment by PrivatBank under the Loan Agreements to or to the order of the Trustee “…shall pro tanto satisfy the obligations of the Issuer in respect of the Notes…” (see clause 13 of the Trust Deed). As a result of this provision, any payment by PrivatBank to the Trustee (whether pursuant to enforcement of the security or otherwise) would automatically discharge the Issuer, and thus prevent there being “arrears” due from it to the Noteholders.
    7. Mr Beltrami suggested that Noteholders would ultimately recover because if the proceeds were not paid under clause 8.1.2 then they would be paid to the Issuer under clause 8.1.3, at which point the Issuer would have received proceeds such as to give rise to its obligation to make payment under the Notes. I do not think the drafter intended funds to be sent round the waterfall twice in this way. Rather, the drafter intended that any sums payable to the Issuer under clause 8.1.3 would be for the Issuer’s own account. Indeed, it is not immediately obvious how sums paid to the Issuer under clause 8.1.3 would remain subject to the security created by the Trust Deed at all, since the subject matter of the charge in clause 4 is limited to the rights under the Loan Agreements, the sums in the Lender Account and the interest in Permitted Investments. This further supports the conclusion that “arrears” in clause 8.1.2 refers to the amounts unpaid from the perspective of the Noteholders: it is only when the Noteholders have no further right to any principal or interest that the Issuer should receive anything under clause 8.1.3.
    8. In the further alternative, it was submitted that there was no obligation to distribute proceeds of enforcement under clause 8.1.2 pari passu, because the entitlement of Noteholders was to receive payment upon actual receipt by the Issuer from PrivatBank and then only “subject to the conditions attaching to” any such receipt. I do not accept this argument. The phrase relied on appears in clause 2.2 of the terms and conditions of the Notes, under the heading “Limited Recourse”, and follows on from the statement that sums actually received by the Issuer will be paid pari passu to all Noteholders. It cannot have been intended, in my judgment, to remove the right to pari passu distribution that had been given by the immediately preceding words in that clause. In any event, (i) it deals with payments to Noteholders, whereas the payments under the Awards are to be made to UAHs and (ii) it deals with payments by the Issuer, whereas the sums to be paid – both under the Awards and under clause 8.1 of the Trust Deed – are payable by the Trustee.

Trustee’s powers and duties in connection with enforcement of the Security

    1. I return to the question I posed in paragraph 41 above, namely whether the Trustee may, consistent with its duties under the Trust Deed, continue enforcement action which will result in it assuming an obligation to apply all of the proceeds of enforcement in payments to the Entitled UAHs alone.
    2. The Trustee has an unfettered discretion as to the manner in which it enforces the security: see in particular clause 7.1 of the Trust Deed (which permits the Trustee after an Event of Default under the Loan Agreements “…at its discretion … to institute such steps, actions or proceedings as it may think fit to enforce the rights of the Noteholders…”) and clause 4.8 and Schedule 10 (which provide for a similarly wide discretion in relation to calling in, collecting, selling or otherwise dealing with the Loan after a Relevant Event has occurred).
    3. It must, however, exercise that discretion subject to its overarching obligation to act in the interests of all the Noteholders: see clause 4.1 of the Trust Deed (which provides that the rights under the Loan Agreements are charged and assigned to the Trustee “for the benefit of itself and the Noteholders”); clause 17.1.6 (which requires the Trustee, whenever it is to have regard to the interests of the Noteholders, to “have regard to the interests of the Noteholders as a class”); and clause 8.1.2 (which, as noted above, requires the funds received by the Trustee to be applied, after costs, charges, expenses and liabilities of the Trustee, pari passu to the Noteholders).
    4. The trust on which the Trustee holds the security is (in the first instance) a bare trust under which the interests of the Noteholders, as beneficiaries, are fixed by reference to the face value of their Notes. In this case the picture is then complicated by the beneficial interest in the Notes being divided up via the sub-trust structure referred to above. Each of those sub-trusts is also a bare trust, the interest of each UAH being fixed by the amount of their interest in the Notes. There is no question of any discretion vesting in the Trustee in this respect.
    5. Conceptually, therefore, the Trustee may be said to hold its rights under the Loan Agreements for the ultimate benefit of each and every one of the UAHs, owing each of them an obligation to recover the amount of the Loan required to repay that UAH. The duty to each UAH is qualified, however, by the duty owed to all other UAHs. In practice, that means that the Trustee cannot take action to the benefit of one UAH which would prejudice others. It could not, for example, under normal circumstances take all the available proceeds of security and apply them in payment of some only of the UAHs. Nor could it take such proceeds as were currently available on a partial enforcement of the security and pay them to some only of the UAHs, if there was any doubt over being able to enforce the remainder of the security. In each case, that would amount to preferring the interests of some beneficiaries over the interests of others.
    6. In considering whether accepting the payments, and the attached obligations, under the Awards would fall foul of its duties, it is first necessary to identify what real alternatives the Trustee has to doing so.
    7. If the Court refuses to grant the relief sought on this application then the matter is automatically referred back to the Tribunal. At that stage, in light of its clear conclusion that no recovery can be made by or for the benefit of any of the Related UAHs, there are only two realistic options. Either the Tribunal concludes that the Trustee’s action against PrivatBank fails altogether by reason of illegality or it provides for an alternative solution to ensure that the Related UAHs recover nothing which – as it acknowledged at paragraph 128 of the Awards – would involve considerably more delay and expense given the locations, resources and conduct of those who might be targeted for relief. Importantly, in neither case would any recovery be made by or for the benefit of the Related UAHs.
    8. It is also instructive to consider the rights of the Noteholders where the Trustee simply refrains from taking action. The final sentence of clause 7.1 of the Trust Deed provides that while Noteholders may not generally enforce the provisions of the Trust Deed, they may do so if “the Trustee, having become bound to proceed in accordance with this Trust Deed, has failed to do so within a reasonable time and such failure is continuing.” Enforcement of the provisions of the Trust Deed includes taking action pursuant to the security over the Loan Agreements to enforce payment by PrivatBank.
    9. The Trustee becomes bound to take action if instructed by Noteholders holding at least one-quarter in principal amount of the Notes outstanding, provided it is indemnified to its satisfaction. This has already been satisfied in this case, where the Trustee took enforcement action upon the instruction of the Instructing Group. While clause 17.2.3 permits the Trustee to refrain from doing anything that would or might in its opinion be contrary to any law or which it may not have power to do, I do not think that would be engaged, since the issue is not whether the Trustee lacks the power to enforce the security, but whether it would be a proper exercise of its discretion where the result would be to benefit some only of the UAHs.
    10. There would be practical hurdles to overcome, caused by the fact that there is only one Noteholder (the common depository). There are, however, circumstances in which the global note may be converted into multiple definitive notes to be held by the participants or, with the co-operation of the participants and the relevant UAHs, the UAHs themselves. The terms of the global note entitle the holder of the Note to request the exchange of the global note for definitive notes in defined circumstances. In the case of the 2013 Notes, those circumstances already exist (one of the circumstances being the occurrence of a “Relevant Event”, which includes the non-payment by the Issuer of principal or interest when the same becomes due). In the case of the 2010 Notes those circumstances do not exist, but in any event those provisions define only the circumstances in which the Noteholder can require exchange, and there does not appear to be anything in the terms of the global note which precludes the Issuer from offering to replace the global note with definitive notes, assuming the persons to whom the definitive notes are to be issued can be ascertained.
    11. If the Trustee was in fact bypassed in this way, then it would create privity directly between the individual holders of the Notes (whether each UAH or an account holder acting on their behalf) and PrivatBank. In that case, as Mr Beltrami submitted, the conclusion of the Tribunal in the existing Awards would, to the extent that any Related UAH itself sought to pursue action against PrivatBank, prevent them from doing so by virtue of issue estoppel.
    12. Where legal action is brought by a trustee, for example to recover trust property from a third party, then a decision adverse to the trustee is binding on the trustee and all of the beneficiaries of the trust, so as to prevent a beneficiary of the trust bringing its own subsequent claim against the third party. That is because there is a sufficient degree of identification between the interests of the beneficiaries and the interests of the trustee: see Gleeson v Wippell & Co Ltd [1977] 1 WLR 510, per Megarry VC at p.515, cited with approval in Lemas v Williams [2013] EWCA Civ 1443, per Arden LJ at [40].
    13. I was initially concerned that, in this case, the effect of the solution which the Tribunal has imposed creates a conflict between the Entitled UAHs on the one hand, and all other UAHs on the other. As such, it might be said that there is insufficient degree of identification (for the purposes of creating an issue estoppel) between any one UAH and the Trustee.
    14. I am persuaded, however, that that is not the correct approach. Rather, it is necessary to focus on the precise issues determined by the Tribunal and the extent to which there is sufficient degree of identification between the Trustee and each UAH in relation to them. The Trustee sought payment under the Loan Agreements for the benefit of all UAHs. The Tribunal’s findings, as to (i) the existence and nature of the illegality and (ii) public policy requiring it to act so as to prevent recovery where to allow the claim would enforce the fraud and assist in the achievement of the fraudulent purpose, are ones in which the Trustee and all UAHs had a sufficient degree of identification. That is sufficient to preclude any of the Related UAHs from being able to recover anything (directly) from PrivatBank. On the other hand, there would be no bar to the Entitled UAHs from recovering in full.
    15. In short, the position the Trustee is faced with is that in no circumstances can it recover anything for or on behalf of the Related UAHs and it can only make any recovery at all if it is prepared to accept that whatever it receives can be paid only to the Entitled UAHs. All parties urged on me the commercial and practical sense in making the order sought in the Claim Form. It would be a “significant step” if the court were to reach a conclusion which led to innocent UAHs who invested in good faith in an English law note instrument being unable to recover on their investments, solely because of the fraud of other non-related noteholders.
    16. I do not think I am driven to that conclusion. Specifically, in the special circumstances of this case I do not think that the Trustee’s duty to act in the interests of all UAHs precludes it from accepting the payments under the Awards. Importantly, although its actions would in fact result in benefit to some only of the UAHs, that would not be at the expense of the other UAHs, because the Trustee is simply incapable of doing anything to benefit them as a result of a legal impediment. The Related UAHs’ inability to recover (and the Trustee’s inability to recover on their behalf) is not due to any action (or inaction) of the Trustee, but is due to the decision of the Tribunal. In other words, the fact that the Trustee cannot recover on behalf of the Related UAHs should not prevent it from recovering on behalf of the Entitled UAHs, where doing so does not itself prejudice the Related UAHs.

The late-responding UAHs

    1. So far, I have focused on the position of the Related UAHs. The solution imposed by the Tribunal also arguably prevents those UAHs who failed to respond by the deadline imposed by the Tribunal from recovering under the Awards. The position is not certain, and at least one former UAH (which had intended to appear on this application, but then sold its interest in the Notes) indicated an intention to argue before the Tribunal that no absolute bar had been imposed.
    2. There is therefore the possibility that some UAHs who are not in fact Related UAHs will still be prevented from recovering. These fall into two categories: those who have yet to come forward at all and those that have come forward but only after the deadline set by the Tribunal.
    3. Nevertheless, I do not think this alters the conclusion that the Trustee would be acting consistently with its duties under the Trust Deed by accepting payment, and the attached obligation, under the Awards. The Trustee’s actions would be no more taken at the expense of the late-responding UAHs than its actions would be at the expense of the Related Noteholders. In neither case does the Trustee use any proceeds of enforcement that were referable to the relevant UAHs’ interest under the Notes, nor is it a consequence of its own action or inaction that precludes the relevant UAHs from recovering. On the assumption that the terms of the Awards do prevent a late-responding UAH from recovering at all, then it is the Awards, and not any action of the Trustee, that has that consequence. The decision of the Tribunal as to what constitutes an “Entitled UAH” is binding on the Trustee and all UAHs (including where that is by reference to a time-bar on claims imposed by the Tribunal), in the same way as its findings as to illegality and its consequences.
    4. There is one potential difference, however. If, as was suggested before me, there remains some uncertainty as to the impact of the deadline imposed by the Tribunal, then there remains the possibility that the late-responding UAHs could persuade the Tribunal that they are to be regarded as Entitled UAHs for the purposes of benefitting from the Awards. If so, then the Trustee’s duty to act in the interests of each UAH, to the extent it is practically able to do so, would require the Trustee to advance such arguments as can be made before the Tribunal on behalf of late-responding UAHs.

Conclusion

  1. For the above reasons, I conclude that the Trustee would not be acting in breach of trust if it accepts the payments from PrivatBank under the Awards and makes the payments to Entitled UAHs in accordance with the payment mechanism set out in the Awards. On that basis, I am prepared to make the order sought in paragraph 1 of the draft Order.
  2. In those circumstances, I need not address the alternative arguments based on the Court’s inherent jurisdiction to relieve the Trustee from liability for breach of trust.

Integral Petroleum SA v Petrogat FZE & Anor [2020] EWHC 558 (Comm) (12 March 2020)

Neutral Citation Number: [2020] EWHC 558 (Comm)
Case No: CL-2019-000023

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)

Royal Courts of Justice
Rolls Building
Fetter Lane,
London, EC4A 1NL
12 March 2020

B e f o r e :

MR JUSTICE FOXTON
____________________

Between:

INTEGRAL PETROLEUM SA


Claimant

– and –

 
(1) PETROGAT FZE
(2) SAN TRADE GMBH


Defendants

– and –

 
(1) MR KLAUS SONNENBERG
(2) MS MAHDIEH SANCHOULI
(3) MR HOSSEINALI SANCHOULI
(4) MR KANYBEK BEISENOV
Third Parties

____________________

Guy Blackwood QC (instructed by Vitaliy Kozachenko) for the Claimants
Chris Smith QC (instructed by Stephenson Harwood ME LLP) for the Third Parties

Hearing dates: 10, 11 and 12 February 2020
____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

Mr Justice Foxton:

    1. This is the hearing of the Claimant’s (“Integral’s”) application to commit the Second Third Party, and the Third Third Party, to prison for contempt of court.
    2. Integral was represented before me by Mr Blackwood QC and the Third Parties by Mr Smith QC. I am very grateful to them for their submissions, in a hearing which I suspect involved significant logistical challenges for both of them.
    3. At the start of the hearing, applications for committal were also pursued against the First and Fourth Third Parties. However, after the evidence had been completed, Mr Blackwood QC for Integral confirmed that the application would not be pursued against those parties.

A The background

A1 The parties

    1. Integral, the First Defendant (“Petrogat”) and the Second Defendant (“San Trade”) are oil trading companies based in Geneva, the UAE and Germany respectively.
    2. The Second Third Party (“Ms Sanchouli”) is an Iranian national. It is her evidence that she oversaw the day-to-day business of both Defendants, together with her father (“Mr Sanchouli”) who is the Third Third Party.
    3. The First Third Party (“Mr Sonnenberg”) was at all relevant times the sole director of San Trade. The Fourth Third Party (“Mr Beisenov”) was the sole director and owner of Petrogat.

A2 The underlying commercial transaction

    1. The committal application arises out of a contract for the sale of oil concluded between Integral as buyer and Petrogat as seller on 16 September 2017 (“the Contract”). The Contract was for the purchase of 20,000 MT (+/- 10%) of Medium Sulphur Fuel Oil (“MSFO”), and 40,000 mt (+/- 10%) of Low Sulphur Fuel Oil (“LSFO”). The MSFO and LSFO were to be sourced from the Seyedi Refinery in Eastern Turkmenistan (“the Refinery”).
    2. San Trade guaranteed Petrogat’s obligations under the Contract by a guarantee letter dated 30 September 2017, a guarantee agreement dated 8 November 2017 and a guarantee agreement dated 22 December 2017 (collectively “the Guarantees”).
    3. The Contract provided for delivery FOB Turkmenbashi Ferry (Western Turkmenistan). Integral was to make partial pre-payments of US$1.5m for the MSFO and $3m for the LSFO, and title was to pass as the product passed the permanent flange at the railway tank car (“RTC”) loading place.
    4. Difficulties arose in relation to loading the LSFO cargo, for reasons which it is not necessary to determine. The parties agreed in the course of a series of telephone conversations between 1 and 3 November 2017 that $1m would be paid by Integral to the Refinery for MSFO, until deliveries of MSFO to that value had been made by the Refinery to Integral, at which point another $1m would be paid for MSFO, with this process continuing until the full 18,000 mt of MSFO had been delivered.
    5. There was a dispute between the parties as to whether, in assessing what amount of the prepayment had been utilised, regard was to be had to the price under Petrogat’s contract with the Refinery (as Integral contended) or the price under the Contract (as the Defendants contended). That dispute was ultimately determined in Integral’s favour by the award of an LCIA arbitration tribunal (“the LCIA Award”).
    6. The first payment of $1m was made to the Refinery on 14 November 2017, and the second $1m on 27 December 2017. By 31 December 2017, some 8,999 mt of MSFO had been loaded (approximately half of the quantity of MSFO provided for in the Contract). Railway bills of lading were issued for the loaded cargo by the Railways Ministry of Turkmenistan (“the Railways Ministry”). These stated that the cargo had been consigned to Integral and they identified the place of delivery as Georgia, which was Integral’s nominated destination.
    7. By 31 December 2017, the parties were in dispute as to whether the pre-payments were sufficient to cover all of the 138 RTCs which had been loaded by that point. It is the Defendants’ case that, against this background, they decided to hold back some of the 138 RTCs to cover the amounts for which Integral had yet to make payment. It was Integral’s case, on which it ultimately prevailed in the LCIA Award, that it had acquired title to the MSFO in all the RTCs.
    8. It is common ground that the Defendants gave the Railways Ministry instructions to amend the bills of lading for 72 RTCs, to provide for the delivery of those RTCs to San Trade and to change the destination of the cargo from Georgia to Bandar Abbas, Iran. It was Integral’s case that this change was effected by San Trade providing a forged letter to the Railways Authority which purported to record Integral’s consent to the amendments, when in fact Integral had approved no such letter and had not consented to the changes. The Defendants say that no such forged letter was produced, and that San Trade made it clear that it was requesting the change because it was in dispute with Integral.
    9. Integral says it learned through its representatives in Turkmenistan that a substantial part of its cargo was being diverted to Iran. It wrote to San Trade and Petrogat urging them to confirm that the cargo would be shipped to Integral and would in no circumstances be shipped to Iran. There was no response to this correspondence and no such confirmation was given.
    10. Accordingly, Integral applied ex parte on notice for injunctive relief (serving the papers on Petrogat and San Trade over the weekend). Following a hearing on the evening of Saturday 13 January 2018, Morgan J granted an injunction which was sealed the following day, and which provided as follows:

“(1) The First and Second Defendants shall take no steps whatsoever to direct delivery of the cargo to Iran or elsewhere and shall take no steps whatever in relation to the Cargo save for those identified in paragraph (2).(2) Both of the Defendants shall by 12.00 hours local time in Turkmenistan on Sunday 14 January 2018 sign by a duly authorised representative a letter in the form of the draft attached hereto as Schedule C and provide such signed letters to the Claimant’s solicitors as soon as signed”.

I will refer to this order as “the Morgan Injunction”.

    1. The letter in question required San Trade and Petrogat to state that:

“It has come to our knowledge that someone purporting to be a representative of San Trade GmbH wrote to Turkmen Railways on or before 12 January 2018 seeking to give instructions on behalf of Integral Petroleum SA to the effect that the cargo be sent to Iran.

The cargo must not be sent to Iran in any circumstances and must either be delivered to Parto Tskali / Khobi Kulveli via Azerbaijan in accordance with the terms of the unamended bills of lading or alternatively should be preserved pending a further order from Integral Petroleum SA or an order of the Court or Arbitration Tribunal in the competent jurisdiction (England and Wales)”.

    1. The Morgan Injunction, which contained the appropriate form of penal notice, was served on Petrogat, San Trade, Ms and Mr Sanchouli and Mr Sonnenberg, together with accompanying correspondence informing them of what they needed to do to comply with its terms. However, it is common ground that no letter in the required form was signed within the deadline imposed by Morgan J or at any time prior to 29 January 2018. On 18 January 2018, in the absence of compliance, Integral served a copy of the injunction on two further individuals, Ms Lobis and Mr Beisenov, who were asked to sign the Schedule C letter. There was still no response.
    2. On 24 January 2016, two days before the return date, Stephenson Harwood Middle East LLP came on the record for both Defendants and served evidence in support of an application to discharge the injunction on various grounds. Integral served reply evidence on the day of the hearing. When the matter came on before His Honour Judge Waksman QC, he adjourned the hearing in view of the late flurry of evidence. At the hearing, Mr Stephen Cogley QC, counsel for the Defendants, informed the Court that the cargo was “almost certainly going to Iran in any event …. over the weekend” and that “the [Schedule C letter] would not make any difference”.
    3. His Honour Judge Waksman QC continued the injunction pending the adjourned return date, but paragraph (2) was varied as follows:

“Both of the Defendants shall forthwith sign by a duly authorised representative a letter in the form of the draft attached hereto as Schedule C (as amended by the order of His Honour Judge Waksman QC dated 26 January 2018) and provide such signed letters to the Claimant’s solicitors as soon as signed”.

The terms of the draft letter in Schedule C were also amended to provide:

“The cargo must not be sent to Iran in any circumstances and should be preserved in its present location pending a further order from the Court or Arbitral Tribunal in the competent jurisdiction (England and Wales)”.

I will refer to the order as varied by His Honour Judge Waksman QC as “the Waksman Injunction”.

    1. The Defendants did not provide a letter in the revised form of Schedule C until 29 January 2018, when they provided a copy (but not the original) signed by Ms Sanchouli under cover of a letter from Stephenson Harwood ME LLP. That covering letter stated that:

“during the course of the morning of Saturday 27 January 2018, the 37 rail cars went over the border to Iran and are now being transported by the Iranian railway authorities to Bander Abas. We are instructed that this was through no fault of our clients following the Order of HHJ Waksman QC and that the Turkmen railway authorities took this decision alone”.

Integral does not accept that explanation.

    1. The Defendants served a substantial volume of further evidence for the resumed return date. At that hearing, Popplewell J found that there was a good arguable case that the Defendants were in breach of the injunction in multiple respects, but that it made no sense to continue the injunction in circumstances in which all or most of the cargo was now in Iran.

B The procedural history of the contempt application

    1. The application notice to commit the Third Parties for contempt was issued on 30 April 2018. On 1 May 2018, Popplewell J gave the Claimants permission to serve that application by alternative means. He also dispensed with the requirement for personal service under CPR 81.10(5).
    2. That order required the Defendants and the Respondents to file evidence in answer to the application notice within 22 days of service. Notwithstanding that provision, no evidence was filed until 3 February 2020. The explanation offered for that late service was that Integral, the Defendants and the Third Parties were in negotiations to settle the underlying commercial dispute, as a result of which it was anticipated that the committal proceedings might be disposed of or adjourned. That is obviously not a satisfactory explanation. For so long as the committal proceedings remained live and they wished to serve witness evidence, the Third Parties were required to serve that witness evidence in accordance with the Court’s direction, or seek an extension of time for doing so.
    3. Integral served reply evidence during the afternoon of the last working day before the hearing, together with a further skeleton argument addressing the Third Parties’ case which had been set out for the first time in their evidence. The late service of evidence significantly impeded the orderly preparation for the hearing. In addition, it has led to a number of issues emerging at a late stage in the case, and not receiving the focus they would have received if the evidence had been served in good time for the hearing. However, in view of the serious allegations which the Third Parties face, I have allowed that evidence to be placed before the Court in the usual way.

C The relevant legal principles

    1. Applications for committal for contempt of court have become an increasingly common feature of High Court litigation, particularly in the Business and Property Courts. One of the few beneficial consequences of that otherwise unfortunate trend is that there are a number of authorities setting out the applicable legal principles.
    2. In JSC Mezhdunarodniy Promyshelnniy Bank v Pugachev [2016] EWHC 192 (Ch) at [41], Mrs Justice Rose summarised the applicable principles as follows:

i) The burden of proving the contempt that it alleges lies on the Applicant. Insofar as the Respondent raises a positive defence, he carries an evidential burden which he must discharge before the burden is returned to the Applicant.

ii) The criminal standard of proof applies, so that the Applicant’s case must be proved beyond reasonable doubt – or so that the court is sure. A reasonable doubt is that quality or kind of doubt which when you are dealing with matters of importance in your own affairs you allow to influence you one way or another.

iii) The court needs to exercise care when it is asked to draw inferences in order to prove contempt. Circumstantial evidence can be relied on to establish guilt. It is however important to examine the evidence with care to see whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the Applicant’s case. If, after considering the evidence, the court concludes that there is more than one reasonable inference to be drawn and at least one of them is inconsistent with a finding of contempt, the claimants fail.

iv) Where a contempt application is brought on the basis of almost entirely secondary evidence, the court should be particularly careful to ensure that any conclusion that a respondent is guilty is based upon cogent and reliable evidence from which a single inference of guilt, and only that inference, can be drawn.

    1. In this judgment, where I make findings of fact or state that I have concluded that an allegation has been proved, I make such findings and arrive at such conclusions on the basis of the criminal standard of proof.
    2. While it is necessary for me to be satisfied to the criminal standard that a particular ground of contempt has been made out, it is not necessary for the court to be satisfied to that standard in respect of its conclusion on each disputed piece of evidence before it can be taken into account: see JSC BTA Bank v Ablyazov (No 8) [2018] 1WLR 1331, where Rix LJ cited with approval the following passage in the judgment of Dawson J in Shepherd v The Queen (1990) 170 CLR 573 , 579-580:

“the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact – every piece of evidence – relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.”

    1. The mental element of the criminal offence of contempt of court is that set out by Briggs J in Sectorguard Plc v Dienne Plc [2009] EWHC 2693 (Ch) at [32]-[33]:

“The mental element required of a contemnor is not that he either intends to breach or knows that he is breaching the court order or undertaking, but only that he intended the act or omission in question, and knew the facts which made it a breach of the order: see Adam Phones v Goldschmidt [1999] 4 All ER 486 at 492j to 494j”.

    1. Where the contempt alleged is the breach of a court order, the principles summarised by Marcus Smith J in Absolute Living Developments Ltd v DS7 Limited [2018] EWHC 1717 (Ch) at [30] are also relevant:

i) The order must bear a penal notice and (subject to dispensation) have been personally served on the respondent.

ii) The order must be capable of being complied with (in the sense that the time for compliance is in the future), and it must be clear and unambiguous.

iii) The breach of the order must have been deliberate, which includes acting in a manner calculated to frustrate the purpose of the order. It is not necessary, however, that the respondent intended to breach the order in the sense that he or she knew the terms of the order and knew that his or her relevant conduct was in breach of the order. It is sufficient that the respondent knew of the order and that his or her conduct was intentional as opposed to inadvertent.

iv) The standard of proof in relation to each allegation that an order has been breached is the criminal standard. The burden of proof is on the applicant to establish an allegation of breach to the criminal standard.

    1. It is clear in this context that the terms of the order should be clear and unequivocal and should be strictly construed. This was emphasised by Lord Clarke in the Supreme Court in JSC BTA Bank v Ablyazov (No 10) [2015] UKSC 64 at [10].
    2. There is one further issue of law which merits consideration. The directors or officers of a company can be committed for the breach of a court order made against that company. As to the principles applicable here:

i) To establish contempt on the part of a director or officer, “it is necessary to show that he/she knew of and was responsible for the company’s breach of the court order, undertaking to the court, or other contempt”: Dar Al Arkan Real Estate Development Company v Al Refai [2015] 1 WLR 135, [33] (Beatson LJ).

ii) A director’s knowledge of the order places him/her under a duty to take reasonable steps to comply. A wilful failure to procure those steps or aiding or abetting a breach is punishable as contempt, even if the individual would not otherwise be liable under the ordinary law of contempt: Westminster City Council v Adbins Ltd [2013] JPL 654, [50]-[51] and Arlidge, Eady and Smith on Contempt (5th) para. 12-127.

iii) The requirement for wilfulness excludes only those situations where a director can reasonably believe some other director or officer is taking those steps: Tuvalu v Philatelic Distribution Corp Ltd [1990] 1 WLR 926, 936.

D The Third Parties’ application to strike out the committal application

    1. The Third Parties have contended before me that the committal application should be struck out on two grounds:

i) First, because it is an abuse of process, because the threat of committal is being used by Integral improperly as a lever to obtain a more favourable settlement agreement.

ii) Second, because Integral has failed to specify the “full grounds” on which the application is made in breach of CPR 81.10(3)(a).

    1. Argument on these applications took up the greater part of the first day of the hearing.

E The application to strike out the committal proceedings as an abuse of process

E1 The legal principles

    1. Steven Gee QC in Commercial Injunctions (6th) at [20-024] states that:

“The threat of contempt proceedings or of continuing contempt proceedings should not be made for any purpose other than securing compliance with the relevant order of the court. To use such a threat to secure a settlement is a gross abuse of process of the court and itself constitutes a contempt of court”.

    1. The authority cited for this proposition is Knox v D’Arcy Ltd Court of Appeal Transcript No. 1759 of 1995 (19 December 1995). In that case, a motion to commit was issued on the basis that the plaintiffs had deliberately concealed evidence when obtaining freezing order relief from the court. Millett LJ found on the facts as alleged that “by no conceivable process of reasoning could the respondents’ failure to measure up to the high standards required of them be described as a contempt of court”. However, he went on to refer to the fact that, on the day before the motion was due to be heard, the applicant’s solicitors had written to the senior partner of the respondent’s solicitors stating:

“I enclose a copy of a Without Prejudice letter which had been sent to your firm today. I hope that in all these circumstances there will be a positive response. I make this point particularly as I do not believe that in all the circumstances that by leaving himself in a position where such allegations have to be made, Mr Campion has best served the interests of the good name of Eversheds.

….

It is my hope that as a result of this letter that appropriate resolution can be achieved between your firm and your clients and our clients”.

    1. The accompanying letter contained an offer to settle the entire litigation, stating:

“In the light of the documents served last Friday [viz the contempt application], we believe that your clients, and in particular Mr Steel [will] wish to reconsider their position. We believe that the same will apply to Mr Campion in view of the serious situation in which he now finds himself. In the circumstances our Clients are prepared to consider to enter a compromise which will have the effect of terminating all the proceedings”.

    1. Against the background of both letters read together, Millett LJ concluded:

“It is obvious to me that the threat of committal proceedings against Mr Steel and Mr Campion was being used as a lever in order to obtain a favourable settlement of the litigation. That, to my mind, is a gross abuse of the process of the court. Indeed, I observe that in 1903, in R v Newton 67 JP 453, the obtaining of money in consideration of an agreement to discontinue contempt proceedings was held itself to be a contempt. What was attempted in the present case was not far short of that. It was a plain attempt to obtain a favourable settlement of litigation by threats to bring committal proceedings against the guiding mind behind the plaintiff and their English solicitor”.

    1. In Ferster v Ferster [2016] EWCA Civ 77, the Court of Appeal upheld the decision of Rose J ([2015] EWHC 3895 (Ch)) that a communication made in the context of a mediation which contains a threat of committal fell within the “unambiguous impropriety” exception to “without prejudice” privilege. The communication in question, sent via the mediator to the respondent (“Jonathan”), involved the withdrawal of an existing offer to settle the dispute, and the making of a less favourable offer, on the basis that the applicant “had become aware of further wrongdoing by Jonathan … which will also have very serious implications for Jonathan’s partner”. The wrongdoing in question was said to be the swearing of false evidence as a result of which “Jonathan will face charges of perjury, perverting the course of justice and contempt of court and is likely to be imprisoned”. Rose J held that “this was an attempt at blackmail”. She stated at [17]:

“The impropriety consists, in my judgment, in threatening to pursue contempt proceedings, including a committal to prison, unless Jonathan pays his brothers a much higher price for the two thirds share, an extra 25%…. It is quite clear that the increase in price is nothing to do with any increase in the value of the shares or of the company’s business, but rather is the price being exacted for the brokers … not causing the company to take action to deal with the supposed wrongdoing they claim to have uncovered”.

    1. In rejecting the appeal against Rose J’s judgment Floyd LJ at [20] agreed that there was a distinction between an offer “which unambiguously exceeds the claim, and one which merely makes an upward adjustment within that value”, noting that “in the former case one might infer more readily that improper factors are being deployed”. There were various reasons why, on the facts of that particular case, the Court concluded that the threat made was unambiguously improper which Floyd LJ summarised at [23]: the threats went beyond what was “reasonable in pursuit of civil proceedings”, by making the threat of criminal action (not limited to civil contempt proceedings); the threats to Jonathan’s family; the threats of immediate publicity; and the fact that the threats sought to procure an advantage for the applicants personally which benefit, if the basis of the threats was correct, ought to have inured to the company in which they and the respondent were shareholders.
    2. In the course of his judgment, Floyd LJ referred to the judgment of Flaux J in Boreh v Republic of Djibouti [2015] EWHC 769 (Comm) at [132], in which he held that certain communications in that case fell within the “unambiguous impropriety” exception because they went beyond “the permissible in settlement of hard fought commercial litigation”. Flaux J’s reference to what was permissible “in settlement of hard fought commercial litigation” is apposite. There is no doubt that committal proceedings are a far more frequent feature of commercial litigation now than previously, and than they were at the time that Knox was decided. Once a committal application has been issued, any settlement of the overall commercial dispute is necessarily going to have to address the position of the committal application, with most respondents being understandably concerned to ensure that the settlement ties up all matters including the contempt, and most claimants themselves wanting to draw a line under the litigation in terms of further costs and management time (in circumstances in which the continuation of the committal application will inevitably involve the claimants in the further expenditure of both). It can never be proper to seek to use a committal application as a lever to bully a respondent into a settlement. However, the practical consideration that resolving an outstanding committal application will in most cases be necessary to achieve a settlement of the commercial dispute means that the court should not jump too readily to the conclusion that references in the settlement communications to the disposal of the committal proceedings or the timing of the committal proceedings evidence an improper purpose on the claimant’s part, or involve the use of the committal proceedings as some form of improper threat.
    3. Finally, in considering the Third Parties’ submission that the committal proceedings were an abuse of process because they were commenced for an improper purpose, I note that the Privy Council in Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17 held that the tort of abuse of civil process would only be established if the proceedings were conducted for a predominant purpose other than those for which they were designed, so as to obtain a benefit other than that for which they were designed. While it is arguable whether the same mental element should be required to strike out civil process as that required to render the civil process an actionable wrong, an enhanced mental element is generally required to make ostensibly lawful steps unlawful because of the purpose for which they are taken. This explains the requirement for a predominant purpose to injure in lawful means conspiracy (Kuwait Oil Tanker v Al-Bader [2000] 2 All ER (Comm 271, [108]) and the requirement that the statutory purpose under s.423 of the Insolvency Act 1986 be “a real and substantial purpose” (Inland Revenue Cmrs v Hashmi [2002] BCLC 489, [25])).
    4. In determining whether the committal was commenced or pursued for the improper purpose of forcing a settlement, I will proceed on the basis that the pursuit of an application to commit will not be such an abuse unless the applicant had as a “real and substantial purpose” the use of the threat of committal to force the respondents to settle the claim. While I can see a strong argument in favour of the view that before striking out such an application on the basis that it is abuse of process, it should be necessary to establish a predominant purpose of the Crawford kind, it is not necessary for me to resolve that issue on this application.

E2 The reference to “without prejudice” materials

    1. In order to make his abuse of process argument good, Mr Smith QC referred me to some of the “without prejudice” communications between the parties, arguing that the “without prejudice” principle is not engaged by the purpose for which the Third Parties seek to rely on the communications, or that one of the exceptions to this head of privilege (that of unambiguous impropriety) applies. Mr Blackwood QC has not sought to debate the admissibility of that material, but very fairly makes the point that if reference is to be made to it, the Court needs to view it in context.

E3 The chronology

    1. In this section, I set out the relevant chronology as it emerges in incontrovertible form from the documents.
    2. Integral notified the Defendants and the Third Parties of their intention to seek committal as early as 27 January 2018, in letters from Mr Kozachenko to Mr Sonnenberg, Mr Beisenov, Ms Lobis and Mr and Ms Sanchouli. Those letters provided:

“I hereby put you on notice that should the relevant cargo be shipped to Iran – as Mr Cogley says it will – or should San Trade fail to remedy its contempt and/or continue to be in breach of injunction, my client will seek your committal to prison for contempt of Court for a term of up to 2 years”.

    1. The reference to committal proceedings in this letter was clearly intended to incentivise the Defendants to comply with the Waksman Injunction, and as such, was entirely legitimate.
    2. On 2 February 2018 Popplewell J discharged the injunction but held that there was a good arguable case that the Morgan and Waksman Injunctions had been breached. He stated:

“I am also satisfied that there is a good arguable case that there have been breaches of the orders; first, in relation to not providing the letter in the form of letter C as required by Mr Justice Morgan; secondly, in relation to what Mr Lakin describes as having happened in paras 6, 4 and 8 of his second witness statement in relation to cooperating with the Turkmen Authorities to enable the cargo to go to Iran; and thirdly, in failing forthwith to sign the letter C in its revised form as ordered by His Honour Judge Waksman”.

    1. The application for committal was issued on 30 April 2018. At the hearing before me, it became apparent that Mr Smith QC was seeking to take the point that the committal application had not only been used for an improper purpose, but had been issued for an improper purpose as well. This ground of challenge was not sufficiently taken (or, as Mr Smith QC fairly accepted, “clearly articulate[d]”) in his skeleton argument, nor had it been flagged in any other way in advance of the hearing on 10 February 2020. As a result, the point was not specifically addressed in the eleventh affidavit of Mr Kozachenko, itself sworn under very heavy pressure of time on 5 February 2020.
    2. Given the prior history of the litigation – the fact that the issue of contempt had been raised by Integral initially for the purpose of procuring compliance with the Waksman Injunction, and given Popplewell J’s findings at the return date – I reject any suggestion that it is to be inferred that Integral had as a real and substantial purpose in commencing and conducting the committal application pressurising the respondents to settle (and certainly no predominant purpose of this kind). Against the background of the events which had led Popplewell J to conclude that there was a good arguable case of breach, Integral’s decision to commence the contempt proceedings against the Defendants and the Third Parties represented an understandable attempt to follow-through on Integral’s earlier statements as to what the consequences of non-compliance would be, and to ensure that there was some sanction for those apparent breaches. The facts of this case are very different to those in Knox, where the attempt to pursue a complaint of non-disclosure in a without notice freezing application through the committal process was a highly unusual course. For these reasons, I have concluded that it would not be appropriate to draw the inference that the contempt application was issued or pursued other than for a proper motive.
    3. On 1 May 2018, Integral served its claim in the LCIA Arbitration which it had commenced against the Defendants on 13 January 2018. The amounts claimed included £135,351.20 for costs, another $439,000 for damages for non-delivery, and a further $164,000 for breach of the warranty of quality in respect of delivered cargo (a total of $603,000).
    4. On 2 May 2018, Integral’s solicitors made a “without prejudice save as to costs” (“WPSATC”) offer, proposing:

“an amicable settlement of all disputes between the parties, including the Claimants’ application to commit Mr Sonnenberg, Ms Sanchouli, Mr Sanchouli, Mr Beisenov and Ms Lobis to prison and the LCIA Arbitration”.

The settlement proposal sought payment of the full costs of the injunction proceedings (£135,551,20) together with a further £300,000 in return for the settlement of all disputes (both the LCIA Arbitration and the contempt application). The offer was made on the basis that both Defendants and the Third Parties (then including Ms Lobis, against whom the order for service of the committal application was subsequently set aside) would be jointly liable for the payment.

    1. Paragraph 3 stated:

“We would respectfully submit that this is a very reasonable settlement for all parties. The Claimant proposes a discount of at least US$195,000 compared to its claims in the arbitration. Petrogat’s and San Trade’s claims in the arbitration are virtually certain to fail. Petrogat’s and San Trade’s legal fees to run the arbitration until the end are likely to exceed the proposed settlement sum. The most reasonable solution is therefore to settle the matter and do so as soon as possible, before any arrest warrants are issued and further legal costs are incurred”.

Paragraph 4 stated:

“This offer is open until 11 May 2018”.

    1. This email provides the high point of Mr Smith QC’s submission that Integral maintained and/or used the committal application for the purposes of impermissibly leveraging a settlement, in gross abuse of process. Mr Smith QC asked for this issue to be decided on the documents alone in advance of the evidence (and it was therefore decided without the benefit of oral evidence from Integral as to what its purposes were).
    2. First, Mr Smith QC relied on the timing of the letter, which came five days after the witness statement in support of the committal application had been served, and two days after Popplewell J had given permission for the committal application to be served. However, it also came the day after Integral had served its claims submissions in the LCIA Arbitration. In short, it came at a point when various steps had recently been taken to initiate courses of conduct which would involve all parties in substantial further expenditure as they progressed. In these circumstances, the obvious inference to draw from the timing of the letter (and the inference which I do draw) is that it was motived by a desire to settle the parties’ entire commercial dispute at a stage when the various strands of litigation were sufficiently identified, but before the further significant costs which those steps would inevitably entail had been incurred. The short deadline for acceptance of the offer – until 11 May 2018 – before any responsive evidence on the committal application was due, and long before the committal application would be heard, supports that view. I note that the first settlement offer made by the Defendants and Third Parties of 7 May 2018, seeking a payment of $1,750,000 “in full an[d] final settlement of all disputes between the parties”, was similarly reflective of a desire to wrap up all disputes in a single settlement at that early stage.
    3. Second, Mr Smith QC relies upon the fact that the offer was made on the basis that the Third Parties would be jointly and severally liable for the settlement sum. Mr Smith QC submitted that as the Third Parties could have no liability to Integral, the request that they have joint and several liability could only be interpreted as the price of foregoing the committal application.
    4. I do not accept this conclusion.

i) The amount sought was substantially less than the amount claimed in the LCIA Arbitration. In these circumstances, as an opening (if somewhat optimistic) shot in negotiations, it was legitimate for Integral to seek some form of additional commitments to pay the settlement sum as a quid pro quo for its reduced amount. The case is very far removed from that considered in Ferster v Ferster in which the threat of committal and other criminal proceedings was used as a basis for revoking a previous offer and replacing it with an offer which was much less advantageous from the recipient’s perspective.

ii) It cannot be said that there was no possibility of the Third Parties having any direct liability to Integral. One of the benefits for all concerned of resolving matters at this early stage is that it avoided the risk (which Mr Smith QC accepted existed) of a s.51 costs order against some or all of the Third Parties in respect of the costs of the injunction application. Further, in circumstances in which it was Integral’s case (upheld in the LCIA Award) that it was the owner of the oil delivered to Iran in apparent contravention of the Morgan and Waksman Injunctions, there was an obvious possibility of those involved in the diversion of the cargo being said to have some liability in conversion or for unlawful means conspiracy (cf JSC BTA Bank v Khrapunov [2018] UKSC 19).

iii) There was potential benefit for the Third Parties in avoiding additional costs in the LCIA Arbitration (to which the letter made express reference), or in subsequent claims brought to enforce any award obtained in the LCIA Arbitration premised on some or all of the Third Parties having diverted funds from the Defendants. In his eleventh affidavit, Mr Kozachenko specifically referred to Integral “running the risk that the Third Parties would dissipate the Defendants’ assets and cause the Defendant shell companies to disappear without paying the amounts due from them”. Mr Smith QC invited me, in effect, to reject this evidence of Mr Kozachenko (an English solicitor) as untruthful. However, I see no basis for rejecting the evidence of a solicitor on oath that Integral held this (perfectly understandable) concern.

iv) Mr Smith QC made the fair point that there is no evidence of direct claims against the Third Parties being in contemplation on 2 May 2018, and further suggested that there could be no prospect of such claims against Ms Lobis, the operations manager. However, to my mind that involves too granular an analysis of the position when the 2 May 2018 letter was sent. The final resolution of a commercial dispute which, if it continued, might readily develop in ways which could involve the Third Parties entirely independently of the committal application, coupled with the significant reduction of the amount claimed, provided ample justification for an offer at that stage on a basis which would involve joint and several liability on the part of the Third Parties. In circumstances in which Integral had obtained permission to serve the application against all five Third Parties on the basis that they were the defendants’ “owners, principals and/or directors”, it was understandable at this early stage that no distinction was drawn between the position of different Third Parties. Finally, the request that all the Third Parties agree to joint and several liability was not maintained by Integral after that opening shot, and indeed the issue of settlement was only returned to by Integral at the suggestion of the presiding arbitrator in the LCIA Arbitration over a year later, and then not in terms which involved any request that the Third Parties assume liability for paying the settlement sum.

    1. Finally, Mr Smith QC pointed to the reference to “before any arrest warrants are issued” in the third paragraph of the letter. I am unhappy about this language, which was unwise. However, viewed in the overall context of the communication, it does not lead me to the conclusion either that the committal was being pursued for the improper purpose of leveraging a settlement, or that the threat of committal was being improperly deployed in that paragraph. The overall thrust of the paragraph, which was otherwise expressed in notably temperate language, was that the settlement would save everyone a great deal of legal costs. The reference to arrest warrants was specifically made in the context of timing, was made at a point in time when any prospect of committal would have been many months away, and when all of the Third Parties were outside the jurisdiction in any event. This was far removed from the threats of immediate action and publicity which were found in Ferster. It would be to put too much weight on a single ill-judged phrase in the letter for me to draw the conclusions which Mr Smith QC invites me to draw from it.
    2. The second communication which Mr Smith QC relied upon in support of the abuse of process argument was sent on 31 December 2019, some 20 months after the first communication. The lengthy period between the two mails itself weighs very heavily against Mr Smith QC’s submission that I should conclude that Integral brought and maintained the committal application for the purpose of improperly pressurising the Defendants and the Third Parties to settle the claim. However, before turning to the terms of the email, it is necessary to provide a little context for it:

i) On 4 April 2019, Ms Helen Davies QC, the presiding arbitrator in the LCIA Arbitration, sent the parties a communication stating:

“As we approach the hearing, and bearing in mind the further costs and time that will be incurred as a result, the Tribunal feels it ought to raise the question with the parties whether they have respectively given consideration to the possibility of resolving or narrowing the issues between them by means of a mediation or direct settlement negotiations”.

ii) The following day, Mr Kozachenko for Integral sent a WPSATC letter offering to settle the arbitration for £100,000 and $200,000. There was no mention of the Third Parties assuming liability nor of the committal application. In response, Stephenson Harwood ME LLP sent their own WPSATC letter seeking $1.1m and $650,000 costs to settle “all disputes between the parties”.

iii) On 7 November 2019, Stephenson Harwood ME LLP sent another WPSATC letter. By this time, the Tribunal had awarded USD 459,680.37 and CHF 860,000 plus costs to Integral. The letter confirmed that the Defendants would not pay the sum but would defend the committal proceedings (asserting “they have little concern regarding the result of those proceedings as they have no need to visit England & Wales”). They made an offer to pay $225,000 to “avoid any further spend on the committal proceedings and in order to settle any and all disputes between the parties”. It was, therefore, the Defendants’ and Third Parties’ solicitors, who specifically raised the issue of the committal proceedings as a term of their own settlement offer. That offer was withdrawn on 19 December 2019.

iv) It is clear that meetings between the respective principals took place in December 2019, in which there was discussion, and quite possibly an agreement in principle, of some form of earn-out mechanism by which the amounts due to Integral would be recouped by profits from future joint business the Defendants would put its way.

v) On 31 December 2019, Mr Kozachenko informed Stephenson Harwood ME LLP that “in view of the potential settlement, we do not believe that it is appropriate, at this stage, to spend further resources on hearings and/or applications” and set out proposals as to how Integral intended to deal with the third party debt order and receivership order.

vi) In response, Stephenson Harwood ME LLP replied:

“We would agree with your position that it makes little sense to spend time and money preparing for hearings where a settlement might be achieved. As you are no doubt aware, we are also currently preparing for the committal hearing. Please let us know your client’s proposals in this regard in the context of the settlement negotiations”.

It was Stephenson Harwood ME LLP, therefore, who specifically asked Integral to address the committal hearing in the context of the ongoing settlement proposals.

    1. The second email on which Mr Smith QC’s abuse of process submission depended was sent in direct response to that request from Stephenson Harwood ME LLP. It provided:

“In relation to the committal hearing our proposal is this. Our clients have discussed that Mr Sanchouli would procure for them certain transactions as a result of which they will make extra profit and will off-set the losses suffered as a result of your clients’ actions and the arbitration. The first such transaction, according to Mr Sanchouli, is to take place shortly. If there is such a transaction, and at least part of our client’s losses are covered in January, our clients will be prepared to adjourn the committal hearings as to allow Mr Sanchouli to arrange further such transactions so that our clients’ entire loss may be off-set. Once our clients’ entire loss is covered, our clients will be prepared to discontinue the committal proceedings”.

    1. I see no basis for the suggestion that in proposing the adjournment of the committal application until there had been at least part performance of the settlement, Integral or its solicitor were doing anything improper. It was Stephenson Harwood ME LLP who had specifically said that the settlement should address the contempt application and who had asked Integral to explain their proposal in this regard. In circumstances in which the financial terms of the proposal had been agreed in principle in advance of the exchanges, there was nothing objectionable in Integral seeking some demonstration of the Defendants’ and Third Parties’ seriousness before acting on the Defendants’ and Third Parties’ request to discontinue the committal proceedings as one of the settlement terms.
    2. Finally, I should note that the parties came very close to resolving the entirety of their dispute on the basis outlined in Integral’s 31 December 2019 email, without any suggestion from Stephenson Harwood ME LLP that the proposal Mr Kozachenko had put forward was professionally improper or involved an abuse of the Court’s process (something I would have expected an experienced commercial solicitor to raise had it been a genuine concern). Further, on 8 January 2020, Stephenson Harwood ME LLP effectively told Integral that it would suffer an adverse financial consequence from pursuing the committal, namely:

“If no settlement is reached they will deal with that hearing in February, but it will only result in the cash offer we are making now being withdrawn as our clients will be required to spend roughly the commensurate amount of money on those proceedings”.

    1. Mr Smith QC, rightly, did not suggest that this involved the offer by his clients of a financial inducement to abandon the committal application or a threat of an adverse financial consequence if they were pursued. The communication reflected the fact that the committal application was an element of the parties’ overall dispute, and that any settlement discussion and settlement strategy had to address it. This is what the solicitors for both parties did.
    2. In the event, after Stephenson Harwood ME LLP had signed a copy of the consent order which would have adjourned this hearing to allow settlement discussions to continue, the Defendants and Third Parties changed their minds, it would appear largely as a result of alighting on the Knox argument now advanced before me. On 27 January 2020, Stephenson Harwood ME LLP wrote to Integral stating:

“As we have made repeatedly clear, it is not acceptable for your clients to hold the committal proceedings over our clients’ heads in order to force them to reach a settlement. It is a significant abuse of process and our clients find it unfair and unacceptable to meet under those conditions”.

    1. However, for the reasons I have set out above, the suggestions that Integral was holding the committal proceedings over the Defendants’ and Third Parties’ heads and had engaged in “a significant abuse of process” are without merit. Mr Kozachenko’s conduct did not go beyond that which was permissible in attempting to settle hard-fought commercial litigation. Accordingly, as I informed the parties shortly after the conclusion of the argument, Mr Smith QC’s application to strike out the committal application as an abuse of process failed.

F The application to strike out the committal application on the basis that it does not sufficiently particularise the alleged acts of contempt

    1. Mr Smith QC’s second threshold objection concerned the particularisation of the acts or omissions said to constitute contempt. I gave a summary of my reasons for refusing that application before the evidence began. For the convenience of the parties, I set them out again here.
    2. The objections arose at a late stage, being taken in evidence served by the Third Parties on 3 and 4 February 2020 for a three-day hearing beginning on 10 February 2020.
    3. The basis of the objection was CPR 81.10(3). This provides:

“The applicant must:

(a) Set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts; and

(b) be supported by one or more affidavits containing all the evidence relied upon”.

F1 The applicable legal principles

    1. Mr Smith QC referred me to a number of authorities emphasising the importance of the requirement that the allegations of contempt be properly particularised in the application notice. These included:

i) Chiltern District Council v Keane [1985] 1 WLR 619, 622 in which Sir John Donaldson MR noted that the notice of motion in that case had specified the grounds of the application in the most general terms. He further stated that the application notice must set out exactly what it is that the person alleged to be in contempt was said to have done or omitted to do which constituted contempt. The Court continued by pointing out that where an injunction permitted of only one type of breach, it might be enough to specify the failure to comply, but that where the order was not in such a simple form, more was required.

ii) The decision of Blair J in Masri v Consolidated Contractors [2010] EWHC 2458 (Comm). Blair J quoted from Nicholls LJ’s judgment in Harmsworth v Harmsworth [1987] 1 WLR 1667 (CA) at 1693, stating that it was not sufficient for the application to refer to a wholly separate document for particulars, but that particulars could be “attached to the notice so as to form part of the notice rather than being set out in the body of the document”. At [29] of his judgment, Blair J observed that the requirement properly to set out the acts or omissions said to constitute contempt was far from a mere formal requirement, and that the Court should not hesitate to strike out a committal application that did not comply with that requirement.

F2 The terms of the application notice in this case

    1. In this case, the application notice provides:

“The Defendants have breached the injunction of Mr Justice Morgan dated 14 January 2018 and the order of His Honour Judge Waksman QC extending and modifying the injunction dated 26 January 2018. The Third Parties, as the Defendants’ owners and/or principals and/or directors caused and/or enabled and/or permitted the Defendants to breach the orders as set out in the attached affidavit”.

    1. The application referred to an attached draft order. I have concluded that the attached draft order falls on the right side of the line identified by Nicholls LJ in Harmsworth as a document to which regard can properly be had when determining if the allegations of contempt have been properly particularised, although I accept that best practice involves the matters said to place the respondent in contempt appearing in the application notice itself.
    2. The draft order:

i) sets out the terms of the two orders.

ii) stated that the contempt consisted in “failing to comply with the aforementioned paragraphs of the orders by … (i) causing and/or enabling and/or permitting the cargo to be shipped to Iran; and (ii) failing to provide the Schedule C letter by 12.00 Turkmenistan time on 14 January 2018 (as required by the 14 January 2018 order) and/or forthwith after the 26 January 2018 order”.

    1. I will address the failure to provide the letter first. In my view this is directly analogous to the example given by Sir John Donaldson MR in Chiltern District Council of an order requiring something to be done by a particular time on a particular day, of which Sir John observed “it would be sufficient to say that he had failed to comply with that order, because it only permits of one breach”.
    2. However, the same is not true of the plea that the Third Parties caused or enabled and/or permitted the cargo to be shipped to Iran. That was simply too general a formulation of the alleged contempt. In those circumstances, I accept Mr Smith QC’s submission that Integral failed to comply with CPR 81.10(3) in this respect.

F3 Were the Third Parties prejudiced by the non-compliance with CPR 81.10(3)?

    1. I am satisfied that this defect in the application notice has not caused any prejudice to the Third Parties who were fully prepared at the hearing to meet the case of contempt on which the application was based:

i) The circumstances in issue involve matters within a limited factual compass.

ii) The factual basis of the allegations of contempt made against the Third Parties have been known to them since May 2018.

iii) The essentials of the allegations have always been clear, with the precise detail of the Third Parties’ conduct being matters within their exclusive knowledge.

iv) The interests of the Third Parties have been protected throughout the period since the application notice was issued by Stephenson Harwood ME LLP. My attention has not been drawn to any occasion prior to the service of their evidence on 3 and 4 February 2020 (by which time the intention to take this preliminary objection had already been formed), in which they expressed any difficulty in understanding what the acts or omissions said to constitute contempt were, or in understanding the case that the Third Parties had to meet for the purpose of preparing their responsive evidence.

v) Albeit at a late stage, the Third Parties have served substantial witness evidence from which it is clear that they understand the case they have to meet and are in no difficulty in responding to it.

vi) Similarly, Mr Smith QC has been able to prepare a detailed skeleton argument setting out the Third Parties’ case in response.

    1. On that basis, I was willing to exercise my discretion under paragraph 16.2 of the Practice Direction 81 (Applications and Proceedings in Relation to Contempt of Court) to “waive any procedural defect in the commencement or conduct of a committal application, if satisfied that no injustice has been caused to the respondent by the defect”, subject to the following conditions:

i) Integral was to prepare an amended Application Notice in compliant form before any of the Third Parties gave evidence.

ii) That amended application form was to be limited to matters which were fairly in issue on Mr Kozachenko’s sixth affidavit (to which the Third Parties’ evidence had already responded).

    1. In this regard, I note the observations of the Court of Appeal in Attorney-General for Tuvalu v Philatelic Distribution Corporation Ltd (at p.935) that:

“It would not, however, be reasonable and would stultify this branch of the law if the same degree of particularity were required in a case where the complainant has not personally witnessed the acts complained of and must rely on inference to establish that non-compliance with a court order was caused by the act or omission of the alleged contemnor. In such a case the complainant must make clear the thrust of the case he will present to the court. The alleged contemnor can then prepare to meet that case.

As the judge rejected this submission on behalf of the second defendant it was not necessary for him to consider the powers which he had to deal with as to any defect in the notice of motion, nor has it been necessary for this court to consider what his powers would have been. However, we would regard it as regrettable if it were the law that, if this could be achieved without causing injustice, the lack of particulars in a notice of motion was not capable of being cured. Such a situation would encourage the incurring of the substantial costs which were incurred in this case to no useful purpose”.

    1. Mr Blackwood QC produced a draft amended version of the Application Notice, which I was satisfied in its final form complied with the CPR 81.10(3) requirements. I gave Integral permission to amend its application notice in terms of the final version of the draft. My reasons for doing so were given in an ex tempore judgment in the afternoon of the first day of the hearing, supplemented by a further ex tempore judgment on the morning of the second day of the hearing.
    2. On this basis, I reject Mr Smith QC’s second basis for applying to strike out the committal application notice.

G The evidence

    1. Integral’s evidence comprised affidavits from its solicitor, Mr Kozachenko, from Mr Saeid Mohseni, a senior trader at Integral, and from Mr Altayev, who was the representative of Integral (and of various other international companies) in Turkmenistan. Mr Kozachenko was not cross-examined. Mr Mohseni and Mr Altayev were cross-examined by video link from Geneva and Turkmenistan respectively.
    2. Mr Mohseni principally gave evidence about the progress of the settlement negotiations with Ms and Mr Sanchouli, and also as to the steps he had taken to inform Mr Sanchouli of the injunction via WhatsApp, Mr Mohseni also offered evidence of what he said was the practice for the amendment of railway bills in Turkmenistan based on his “experience in trading in Turkmenistan”.
    3. Mr Mohseni was based in Geneva during the period with which this application is concerned and had no direct exchanges with the Railways Ministry himself. The timing and content of his communications with Mr Sanchouli are apparent from the documents.
    4. Mr Altayev also gave evidence about the practice of the Railways Ministry in Turkmenistan. His cross-examination was conducted under less than ideal circumstances. There was a significant delay on the video link which, when coupled with the need for questions and answers to be translated into Russian, led to a degree of miscommunication and over-speaking. Time was lost because Mr Altayev did not have access to the hearing bundles and had to find the documents which Mr Smith QC wanted to take him to on his laptop computer. Further, the video link froze, and then cut out, before Mr Smith QC’s cross-examination had been completed.
    5. There is one matter which was the focus of Mr Smith QC’s cross-examination which does give me cause to approach Mr Altayev’s evidence with a degree of caution.

i) In his first witness statement filed in support of the application before Morgan J on 12 January 2018, he stated (at paragraphs 10 to 12):

“On the same day, i.e. 12 January 2018, I went to the central railway administration in Ashgabad …. The administration informed me that the rerouting of Integral Petroleum’s cargo to Iran took place in compliance with the orders contained in correspondence from San Trade and Integral.

When I told them that Integral did not write such letters, they said that this is incorrect and that they had a letter from San Trade, seeking to change the delivery destination. This letter had another letter annexed to it. This second letter in the annex was, as I was told, a letter from Integral Petroleum SA agreeing to what San Trade had proposed.

I have again discussed the matter with Integral’s head office in Geneva, who told me that [they] have never written any such letter. It therefore seems that the letter must have been misappropriated by someone trying to steal Integral Petroleum’s cargo”.

ii) In his first affidavit sworn in support of the committal application on 26 February 2018, Mr Altayev gave what appears to be an inconsistent account of what he confirmed was the same conversation with the Railways Ministry. He states at paragraph 5:

“In the morning of 12 January 2018, I learned that of the 138 RTCs loaded at the Seyedi refinery, San Trade and Petrogat were arranging for redirection of 103 RTCs to Iran. I learned this from (i) the Turkmenbashi-I railway station where most of the cargo was located at the time; and (ii) because I spoke to the Head of Freight Transportation Department at the Ministry of Railways, Mr Gurbanov. According to them, the redirection was taking place because San Trade/Petrogat requested it in a letter. I was informed both by Mr Gurbanov and by the Turkmenbashi-1 station that the relevant person from San Trade who was ordering the redirection was Ms Nadia Lobis, San Trade and Petrogat’s representative in Turkmenistan. I attach my contemporaneous correspondence with Integral’s office in Geneva on this issue”.

iii) It will be apparent that this version of the same conversation did not include any reference to Mr Altayev being informed that a letter from Integral had been produced by San Trade. Further, the email from Mr Altayev to Integral of 12 January 2018 made no such reference, stating simply:

“They brought a telegram to Turkmenbashi station about redirection of all RTCs on the territory of Turkmenistan to Bander Abba (Iran)”.

iv) In his second affidavit sworn on 5 February 2020, after the Third Parties had suggested that he appeared to be withdrawing his evidence about the forged letter, Mr Altayev stated:

“I would like to clarify that I am not withdrawing any evidence. Without waiving privilege, I understand from my lawyers that while ‘the forged letter’ was important for the injunction proceedings, it was not relevant for the committal proceedings, because the letter was produced prior to the injunction of Morgan J. It is for this reason alone that I do not repeat my evidence in relation to the letter”.

v) Mr Altayev was cross-examined about this issue, in the circumstances I have set out above, but no clear answer emerged.

    1. I accept that the explanation in Mr Altayev’s second affidavit is a possible explanation for his failure to mention this important part of his conversation with Mr Gurbanov, albeit perhaps a surprising one. It is also surprising that there was no mention of this issue in his contemporaneous email to Integral. Mr Altayev clearly did report a conversation to this effect to Integral on 12 January 2018 because it features in Mr Kozachenko’s letter of that date. However, the differing accounts may well reflect the fact that the communications which Mr Altayev had had with the Railways Ministry may have involved more than one conversation or may have been inconsistent in their content.
    2. I turn to the evidence adduced by the Third Parties. This comprised affidavits from:

i) Ms Sanchouli, who was cross-examined by video link.

ii) Mr Sanchouli who did not make himself available for cross-examination.

iii) Mr Beisenov who did not make himself available for cross-examination.

iv) Mr Sonnenberg who was cross-examined by video link.

    1. Ms Sanchouli is a Farsi speaker who, she accepted, had a “reasonably good command of spoken English”. To her credit, she gave evidence in English. Her (lengthy) affidavit was also produced in English. I am satisfied that Ms Sanchouli has a good command of English, but I have made allowances in my assessment of her evidence for the fact that she was not giving evidence in her first language.
    2. Ms Sanchouli clearly had a close involvement in and good understanding of the underlying commercial dispute, and of the issues in the contempt application. She had a tendency in the course of questioning to fall back on and repeat a number of “prepared lines” rather than answering the question: for example the fact that it was not possible to sign the Schedule C Letter because the first paragraph was not true, or her repeated references to the advice that her UAE lawyers had given her. She was clearly alive in her evidence to a legal argument open to the Third Parties that there had been no contempt because the shipment of the cargo to Iran took place as a result of the Defendants’ diversion of the cargo before the Morgan Injunction, rather than any positive steps taken by the Defendants after the Morgan Injunction, and she sought to frame a number of her answers accordingly. In particular, Ms Sanchouli sought to walk this difficult line when asked repeatedly what her understanding was, when giving an instruction on 18 January 2018 that 36 of the RTCs which the Defendants had previously re-routed to Iran should be routed back to Integral, as to what would happen to other RTCs which the Defendants had rerouted to Iran. It was clear to me that Ms Sanchouli fully understood the potential significance of this question, and that she sought to avoid answering it.
    3. For these reasons, I have found it necessary to treat Ms Sanchouli’s evidence with caution. I have been guided in my assessment of her evidence by the considerations identified by Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]-[24], but taking account of the fact that this is a committal application in which the subjective state of mind of the respondents has a prominence which it does not ordinarily have in a commercial case, and of the heightened burden of proof which applies in the present context.
    4. Mr Sonnenberg is a German speaker but with a very good command of English. I found him to be an honest witness, but someone who had adopted an unduly sceptical attitude to an order of the English court by reference to his own understanding of German law, in circumstances in which the parties had chosen English law and London arbitration in their contracts. It was clear from his evidence that he had very little involvement in this transaction before becoming aware of the Morgan Injunction, that Ms Sanchouli had told him that she was handling the matter and essentially instructed him on behalf of San Trade not to sign the Schedule C Letter, and that he himself took steps to try and ensure the RTCs remained within Turkmenistan in an effort to “hold the ring” in response to the Morgan Injunction. Realistically, in the light of this evidence, and evidence suggesting a similar lack of involvement on the part of Mr Beisenov, Mr Blackwood QC did not pursue the committal application so far as they were concerned in closing.
    5. In relation to Mr Sanchouli, I asked Mr Smith QC to confirm whether he had been warned that by choosing not to make himself available for cross-examination, there was a risk of adverse inferences being drawn against him (cf Whipple J’s judgment in VIS Trading v Nazarov [2015] EWHC 3327 (QB) at [57]). Mr Smith QC confirmed that Mr Sanchouli had been so advised.

H The position of the Third Parties

    1. The committal application against the Third Parties was advanced on the basis that they were either de jure or de facto directors of one or other of the Defendants. This issue was first aired before the Court when the Third Parties challenged the order giving Integral permission to serve the application for committal on Ms and Mr Sanchouli and Ms Lobis. The challenge in respect of Ms Lobis succeeded and I need say no more about it.
    2. In a reserved judgment reported at [2018] EWHC 2686 (Comm), Moulder J rejected the argument that the reference to a director in CPR 81.4(3) was limited to de jure directors ([67]). She also concluded that Integral had the better of the argument that Ms and Mr Sanchouli were de facto directors of both Defendants ([80]). An application for permission to appeal against the judgment was rejected by Flaux LJ on 23 January 2019.
    3. Before me, while there was no formal concession of the point, Ms Sanchouli and Mr Sanchouli did not seek to challenge the argument that they were de facto directors of both Defendants. On the basis of their own evidence, I am satisfied to the relevant standard that Ms and Mr Sanchouli were de facto directors of both the First and Second Defendants.

I The need to consider each of the grounds of committal in turn

    1. The approach which a judge hearing an application for committal should adopt has been the subject of guidance from the Court of Appeal in Inplayer Limited v Thorogood [2014] EWCA Civ 1511, as commended in Hewlett Packard Enterprise Co v Sage [2017] EWCA Civ 973. In short, the judge should confine himself or herself to the contempts which are alleged in the application notice, and set out each relevant ground of contempt before proceeding to consider whether it is made out on the evidence to the criminal standard of proof.
    2. It is also necessary to consider the Third Parties separately. I have decided that the issues in this case are best approached by considering the position of Ms Sanchouli first, by reference to each ground of contempt alleged against her, and then the position of Mr Sanchouli. I do so by reference to the “Particulars of breaches of Third Parties” document which I gave Mr Blackwood QC permission to amend into the Application Notice on the second day of the hearing.

J The position of Ms Sanchouli

J1 Ms Mahdieh Sanchouli, a de facto director of Petrogat and San Trade, failed to sign the letter in the form of the draft attached as schedule C to the Order of Morgan J dated 14 January 2019, whether by the stated deadline of 12:00 hours local time in Turkmenistan on 14 January 2018 or at all

    1. I find that by late Saturday night on 13 January 2018 or in the very early hours of the following morning UAE time, Ms Sanchouli was aware that Integral was applying to the English court for an urgent injunction. She received, and replied to a communication from Fortier Law to that effect saying:

“Legally you shall not give legal notices after midnight, during holidays and expect immediate reply. Also you shall not accuse our company and use inappropriate words without any evidence. Our lawyer will get back to you tomorrow”.

    1. Ms Sanchouli confirmed in her evidence that she had read the draft order sent to her, but stated that she could not rely on a draft of a document because there was no stamp on it.
    2. The Morgan Injunction was served on Ms Sanchouli’s email address at 00.54 UK time on 14 January 2018 (03.54 UAE time). Ms Sanchouli’s evidence was that she “cannot recall exactly when I first saw the email however it will have been at some point on the morning of 14 January 2018”.
    3. In these circumstances Mr Smith QC contends that no breach of the order can be made out. His argument proceeded as follows:

i) The time for performing the mandatory order was 11am UAE time on 14 January 2018.

ii) If the order only came to Ms Sanchouli’s attention at or after 11am UAE time, or sufficiently close to 11am that Ms Sanchouli did not have enough time to comply with it, there could be no breach of the order.

iii) A failure by Ms Sanchouli to take steps to comply with the order at or after 11am UAE time would not constitute a breach of the order (relying on the judgment of Sir James Munby in In the matter of an application by Her Majesty’s Solicitor General for committal of Jennifer Marie Jones [2013] EWHC 2579 (Fam)).

iv) The Court could not be sure that Ms Sanchouli had seen the order before 11am UAE time on 14 January 2018, and sufficiently in advance of 11am UAE time to allow time for considered compliance.

    1. Before considering this argument further, I should say something more about the decision of Sir James Munby in In re Jones. That was a case in which a mother had been ordered to “deliver up the children into the care of the father or cause the children to be so delivered up, at Cardiff Railway Station at no later than 4pm on 12 October 2012”. This not having happened, the Solicitor General moved to commit Ms Jones for contempt on two bases: in failing to deliver up the children by 4pm on 12 October 2012 and “that she continued to breach the order by failing to deliver up the children after 4pm on 12 October 2012”. Sir James Munby (P) said of this argument:

“[20]  There is, in my judgment, simply no basis in law upon which the Solicitor General can found an allegation of contempt for anything done or omitted to be done by the mother at any time after 4pm on 12 October 2012. Paragraph 2(b) of the order was quite specific. It required the mother to do something by 4pm on 12 October 2012. It did not, as a matter of express language, require her to do anything at any time thereafter, nor did it spell out what was to be done if, for any reason, there had not been compliance by the specified time. In these circumstances there can be no question of any further breach, as alleged in the Solicitor General’s notice of application, by the mother’s failure to deliver up the children after 4pm on 12 October 2012 or, as alleged in the application, any continuing breach thereafter until 17 October 2012 when she and the children were found.[21] A mandatory order is not enforceable by committal unless it specifies the time for compliance: Temporal v Temporal [1990] 2 FLR 98. If it is desired to make such an order enforceable in respect of some omission after the specified time, the order must go on to specify another, later, time by which compliance is required. Hence the form of ‘four day order’ hallowed by long usage in the Chancery Division, requiring the act to be done “by [a specified date] or thereafter within four days after service of the order”. This is an application of the wider principle that in relation to committal “it is impossible to read implied terms into an order of the court”: Deodat v Deodat (unreported, 9 June 1978: Court of Appeal Transcript No 78 484 ) per Megaw LJ. An injunction must be drafted in terms which are clear, precise and unambiguous. As Wall LJ said in Re S-C (Contempt) [2010] EWCA Civ 21, [2010] 1 FLR 1478, [17]:

“if … the order … was to have penal consequences, it seems to us that it needed to be clear on its face as to precisely what it meant, and precisely what it forbad both the appellant and the respondent from doing. Contempt will not be established where the breach is of an order which is ambiguous, or which does not require or forbid the performance of a particular act within a specified timeframe. The person or persons affected must know with complete precision what it is that they are required to do or abstain from doing”.

[22] The present case is a particularly striking example of the impossibility of reading in some implied term. What the order required the mother to do was to:

“deliver up the children into the care of the father … at Cardiff Railway Station at no later than 4pm on 12 October 2012.”

Suppose that for some reason she failed to do that. What then did the order require her to do? Deliver the children to the father at Cardiff Railway Station or at some other (and if so what) place? And assuming it was to be at Cardiff Railway Station by what time and on what day? Or was she (to adopt the language of a subsequent proposed order) to return, or cause the return of, the children to the jurisdiction of the Kingdom of Spain by no later than a specified date and time? It is simply impossible to say. Speculation founded on uncertainty is no basis upon which anyone can be committed for contempt.

[23] I do not want to be misunderstood. If someone has been found to be in breach of a mandatory order by failing to do the prescribed act by the specified time, then it is perfectly appropriate to talk of the contemnor as remaining in breach thereafter until such time as the breach has been remedied. But that pre-supposes that there has in fact been a breach and is relevant only to the question of whether, while he remains in breach, the contemnor should be allowed to purge his contempt. It does not justify the making of a (further) committal order on the basis of a further breach, because there has in such a case been no further breach. When a mandatory order is not complied with there is but a single breach: Kumari v Jalal [1997] 1 WLR 97. If in such circumstances it is desired to make a further committal order – for example if the sentence for the original breach has expired without compliance on the part of the contemnor – then it is necessary first to make another order specifying another date for compliance, followed, in the event of non-compliance, by an application for committal for breach not of the original but of the further order ….” .

    1. In this case, there can be no serious dispute that the Defendants, to whom the orders were addressed, were in breach of them by 11am UAE time on 14 January (some 7 hours after service of the orders on a number of directors of the Defendants). Contempt in failing to comply with a court order is a strict liability offence (Arlidge, Eady & Smith on Contempt (5th) para. 12-93). It is “no defence for a company to show that its officers were unaware of the terms of the order or that they failed to realise that the terms were being broken by their action” (para. 12-115).
    2. However, as a director of the Defendants, Ms Sanchouli can only be liable for the Defendants’ contempt if she was aware of the order and wilfully failed to take reasonable steps to ensure that the order was obeyed (AG for Tuvalu v Philatelic Distribution Corpn [1990] 1 WLR 926, 936).
    3. On the facts of this case, I am sure that the Morgan Injunction came to Ms Sanchouli’s attention early in the morning UAE time on 14 January 2018 for the following reasons:

i) She had, on her own evidence, read the draft order the night before. She would therefore have been aware that, if granted, the Order required compliance by 11am UAE time the following day.

ii) In these circumstances, Ms Sanchouli would inevitably have checked her emails as soon as she woke up to see what had happened, not least to see if the draft order was now stamped (given her evidence that she had attached significance to the lack of a stamp when reviewing the draft order the previous night).

iii) Sunday 14 January was a working day in the UAE.

iv) It is striking that at no stage in the Defendants’ response to the Morgan Injunction, or in Ms Sanchouli’s evidence, does she suggest that the deadline for compliance had passed before she became aware of the order. Had this been the case, it is inconceivable that Ms Sanchouli would not have noticed that the time for compliance had already passed before she became aware of the order, and the point would then have been taken on her behalf.

v) In fact, it is clear that Ms Sanchouli could not offer this excuse for non-compliance. In his affidavit, Mr Sanchouli stated:

“I accept that I did not sign the Schedule C Letter by the deadline imposed by the Morgan J Order … The reasons for my not signing the letter are the same as those provided by my daughter in MS1 and in addition I was unable in any event to sign the Schedule C Letter within the period required”.

vi) Ms Sanchouli and Mr Sanchouli’s affidavits are in very similar terms. Paragraph 107(6) of Ms Sanchouli’s affidavit and paragraph 45 of Mr Sanchouli’s affidavit are in the same terms save that the italicised words appear in only Mr Sanchouli’s affidavit:

“It is correct that I did not sign the Schedule C Letter as provided for in the Morgan J Order. I have however set out the reasons why I did not do so and in any event I became aware of it too late to comply with the requirement (i.e. to sign the Schedule C Letter by noon Turkmenistan time). For that I apologise again to the Court and I can assure the Court that no disrespect was intended. I will leave it to my legal representatives to address the consequences of that”.

vii) The clear and obvious inference from these paragraphs is that while Mr Sanchouli was saying that he was unable to sign the Schedule C Letter within the period required, the same was not being (and could not be) said by Ms Sanchouli.

    1. Given that the terms of paragraph 2 of the Morgan Injunction required Ms Sanchouli to do no more than sign and produce the Schedule C Letter, I am satisfied that Ms Sanchouli had more than sufficient time after becoming aware of the contents of the Morgan Injunction to sign and produce the Schedule C Letter before 11am UAE time, even allowing for some time for reflection. In any event, when an order of the Court is made which requires action to be taken urgently, a corporate defendant and its directors are expected to comply with that order. If a decision is taken deliberately and consciously not to comply by the deadline because of a desire to carry out further investigations, that might be a relevant matter when deciding whether committal was appropriate or what sanction to impose (particularly if compliance followed soon after the deadline). It does not, however, have the effect that no contempt in the form of a deliberate breach of the injunction has occurred.
    2. In these circumstances, it is not necessary for me (so far as Ms Sanchouli is concerned) to consider the position of a director who only becomes aware of an order after the company is already in breach of the order, or only becomes aware after that date that no other director is handling the issue. However, I return to that issue when considering the position of Mr Sanchouli below.
    3. For these reasons I am sure that the Defendants were in breach of paragraph 1 of the Morgan Injunction, and that Ms Sanchouli, as the de facto director who, on her own evidence, had responsibility for dealing with this matter and familiarity with the underlying transaction, is responsible for that breach, having taken a deliberate and conscious decision not to sign the Schedule C Letter.
    4. However, in order to determine the character of the breach, it is necessary to consider the reasons which Ms Sanchouli has given for not signing the Schedule C Letter (and for failing to do so at any time before 29 January 2018, by which time the overwhelming majority of the cargo had crossed into Iran).
    5. The first reason she gave is that signing a letter which contained the statement in the first paragraph would have involved the Defendants acknowledging:

i) a fact which the Defendants neither knew nor believed to be true, namely that “it has come to our knowledge that someone purporting to be a representative of San Trade GmbH wrote to the Turkmen Railways on or before 12 January 2018 seeking to give instructions on behalf of Integral Petroleum SA to the effect that the cargo be sent to Iran”; and

ii) the requirement to deliver all 138 RTCs to Integral “which … [she] did not think they were entitled to”.

    1. I am willing to accept that the Defendants may have believed the statement in the first paragraph of the Schedule C Letter was untrue (and that it may well have been untrue):

i) The only evidence before me that any such forged letter had been prepared was the evidence of Mr Altayev as to what unnamed representatives of the Railways Ministry said to him.

ii) But even leaving aside the issues which have been raised by Mr Smith QC about Mt Altayev’s evidence, that is at best hearsay from an unknown source, with the possibility that the Railways Ministry was offering a justification for the decision to amend the railway bills of lading which was not in fact correct.

iii) No copy of the letter has been produced nor any evidence directly from the Railways Ministry.

iv) By contrast copies of the communications from the Defendants to the Railways Ministry which were produced at a late stage by the Defendants (and the authenticity of which was not challenged) refer to the reason for re-consignment being “in connection with the refusal of the consignee, we are forced to redirect these wagons to Iran” (something scarcely consistent with the Railways Ministry being told that Integral as consignee had agreed to the change).

v) Mr Blackwood QC realistically accepted in closing that there was not sufficient material to justify a finding by the Court that the Defendants had produced such a forged letter.

    1. However, I do not find that to be a sufficient reason for the refusal to make any effort to comply with the Morgan Injunction. An important and operative part of the Schedule C Letter was the second paragraph. The issues raised by the Defendants and Ms Sanchouli concerning the first paragraph provided no reason not to provide a letter in the form of the second paragraph. However, it was the second paragraph which was the principal reason why the Defendants refused to engage with the Morgan Injunction. It is striking that when Stephenson Harwood ME LLP came on the record for the Defendants, they wrote on 24 January 2018 explaining why the Defendants had refused to sign the Schedule C Letter. No mention was made of the issue now raised with regard to the first paragraph. The only point taken concerned the second paragraph, of which Stephenson Harwood ME LLP stated:

“Paragraph 2 of the Order compels the Defendants to execute a letter in the form of the draft attached at Schedule C thereof. This letter is clearly highly inappropriate in that it requires the Defendants to confirm that:

‘The cargo must not be delivered to Iran in any circumstances and must either be delivered to (Parto / Khobi Kulveli) via Azerbaijan in accordance with the terms of the unamended bills or should be preserved pending further order from Integral Petroleum SA or an order of the Court of or Arbitration Tribunal in the competent jurisdiction’.

The Claimant clearly intends that this letter be used to redirect the remaining 37 railway cars to Georgia (or wheresoever the Claimants chose). Nowhere have you drawn the Judge’s attention to the fact that the Claimant has not paid for these cargoes”.

    1. Mr Smith QC points to Ms Sanchouli’s evidence that she told Stephenson Harwood ME LLP about her concerns about the first paragraph, and submits that in those circumstances the fact that this point did not feature in their letter was the result of a decision of Stephenson Harwood ME LLP, and not Ms Sanchouli. I am willing to accept that Ms Sanchouli mentioned her concern about the first paragraph of the Schedule C Letter to Stephenson Harwood ME LLP. But I have no doubt that their letter, the first substantive step taken by Stephenson Harwood ME LLP in the dispute, reflected the Defendants’ and Ms Sanchouli’s principal concern as communicated to them, and that this was the driving consideration behind Ms Sanchouli’s refusal to sign the Schedule C Letter.
    2. I am sure that Ms Sanchouli was determined to ship the RTCs which the Defendants maintained Integral had not paid for to the UAE via Iran, and to do so notwithstanding the Morgan Injunction. I find that the failure to sign a letter containing at least the second paragraph of the Schedule C Letter involved a deliberate breach of the Morgan Injunction, and did not result from the concern which I accept may have applied to the first paragraph.
    3. The second reason put forward for not producing any letter was that Ms Sanchouli had been advised by UAE lawyers that Mr Kozachenko had no authority to represent Integral because he had not produced a power of attorney (“POA”), and that the Morgan Injunction was invalid as a result.
    4. As to this:

i) Ms Sanchouli instructed the UAE law firm of Waleed Al Marzooqi & Khalid Mohammed Advocates (“Waleed Al Marzooqi”) who corresponded with Mr Kozachenko. The Defendants maintained privilege in that advice, but Ms Sanchouli stated that she had been advised that Mr Kozachenko could not obtain a valid order from the English court without a power of attorney (“POA”).

ii) I am prepared to accept that such advice may have been given. Certainly, the issue of a POA features in Waleed Al Marzooqi’s letter to Mr Kozachenko of 14 January 2018.

iii) However, the Defendants had contracted with Integral on the basis of English law and knew that Integral intended to apply and had applied to the English court.

iv) Further, Mr Sanchouli and (I find) Ms Sanchouli (who was in regular contact with her father) knew that Mr Kozachenko was acting for Integral. In a WhatsApp message with Mr Mohseni of Integral of 13 January 2018, Mr Sanchouli stated “I just saw your attorney’s email this morning” (which can only have been the email from Mr Kozachenko and which Ms Sanchouli said she had bought to Mr Sanchouli’s attention). Mr Sanchouli said, “we will just respond to your attorney” and that “it is better [for] issues to be resolved in their proper channel” (i.e. through lawyers). It was Mr Sanchouli’s position, therefore, that Mr Kozachenko was Integral’s lawyer, and that the appropriate channel of communication with Integral was through Mr Kozachenko. In the same WhatsApp exchange, Mr Sanchouli said that Mr Kozachenko had started proceedings, and it was “better for him to continue”.

v) In these circumstances, it was not reasonable for Ms Sanchouli to refuse to comply with the Morgan Injunction based on the advice of Waleed Al Marzooqi that there was an additional requirement for production of a POA. An individual who decides to ignore a court order on the basis that there is a technical objection to the order acts at their own peril if that objection proves to be unfounded, particularly when they have taken no steps to obtain advice from lawyers qualified in the relevant jurisdiction.

vi) Finally, it is striking here that when Ms Sanchouli did instruct English lawyers, on 21 January 2018, no signed copy of the Schedule C Letter in any form was forthcoming (and indeed none until the greater bulk of the cargo had crossed into Iran).

J2 In breach of paragraph 1 of the Order of Morgan J, Ms Mahdieh Sanchouli, a de facto director of Petrogat and San Trade, took steps in relation to the Cargo as defined by the Order of Morgan J, and took steps to direct the cargo to Iran

    1. It is important to note that paragraph 1 of the Morgan Order takes the form of a negative (and not a mandatory) injunction. The paragraph placed no obligation on the Defendants to undertake any positive act but did require the Defendants to refrain from taking any steps to direct the cargo to Iran.
    2. In the “Particulars of breaches” document, Mr Blackwood QC referred to three specific paragraphs of Mr Kozachenko’s sixth affidavit setting out the matters said to constitute this contempt which I consider in turn.

Permitting the cargo to be shipped to Iran, even though pursuant to the injunction it must not have been shipped to Iran under any circumstances

    1. I agree with Mr Smith QC that this conduct, even if established, would not constitute a breach of paragraph 1 of the Morgan Injunction. It does not specify an act which the Defendants took which they were injuncted from taking, but (at best) a failure to take positive steps which the Morgan Injunction did not order the Defendants to take. Accordingly, no contempt to this effect is made out.

Procuring the cargo to be shipped to Iran by taking active steps to convince the Turkmen Railways that the order of Mr Justice Morgan was invalid (when it was not invalid) and to ship the cargo to Iran in breach of the injunctions

    1. In relation to the first part of this paragraph, no evidence was adduced before me that the Defendants took active steps to convince the Turkmen Railways that the order of Mr Justice Morgan was invalid and no such case was put to Ms Sanchouli in cross-examination. Accordingly, this alleged ground of contempt is not established.
    2. The second part of this paragraph – that the Defendants took active steps to ship the cargo – is considered below in the context of Mr Blackwood QC’s final particular under this head of contempt.

Procuring the cargo to be shipped by taking active steps to enable the cargo to be shipped to Iran, by supplying documents (including bills of lading) to the various authorities in Turkmenistan and finalising the customs procedures to enable the cargo to be so shipped

    1. It is not in dispute that the Defendants took active steps before the Morgan Injunction to divert the cargo to Iran. In particular, acting on Ms Sanchouli’s instructions, on 9 and 10 January 2018 Ms Lobis sent letters to the Railways Ministry requesting the reconsignment of 73 RTCs, leading the Railways Ministry to issue orders to that effect on 10 and 11 January 2018 (Orders Nos. 15 and 16). A further request was sent on 12 January 2018 stating:

“The company San Trade … asks you to help and re-consign the tankers in quantity of 73 pcs … Payment in accordance with instruction No. 33 d/d 10.01.2018 has been completed. In the AIGTR … consignment note please indicate”

(and then various information was set out). Orders Nos 15 and 16 provided that the consent of the Customs Department was required.

    1. The issue is whether any such steps took place after the Morgan Injunction, or whether the position may be that no further steps were taken by the Defendants, but the Railways and Customs Ministries acted after that point on their own initiative in taking the steps by which part of the Cargo was diverted to Iran.
    2. There are essentially two issues to consider.
    3. First, Mr Blackwood QC submitted that the Defendants took identifiable active steps after the Morgan Injunction to divert part of the cargo to Iran. The following matters are clear from Ms Sanchouli’s evidence:

i) By 15 January 2018, the letters sent by Integral on 12 January, the Morgan Injunction and Integral’s dealings with the Railways Ministry and Customs Department had resulted in the cargo being stopped.

ii) On 16 and 17 January 2018, Ms Sanchouli performed calculations to work out how many RTCs should go to Integral on the basis of the Defendants’ approach (i.e. using the Contract price). She concluded that a further 36 RTCs should be re-routed back to Integral.

iii) Ms Sanchouli then instructed Ms Lobis to send a letter to the Railways Ministry requesting the re-consignment of 36 of the 47 RTCs which were the subject of Order 15 to Integral.

iv) By 21 January 2018 this instruction had been acted upon.

    1. The terms of the letter sent by Ms Lobis to the Railways Ministry on 18 January 2018 provided as follows:

“Earlier the company asked you to forward 47 of its own wagons (SAN TRADE GMBH) loaded at station Seyidi with fuel oil from the station Turkmenbashi-1 to Iran … We ask you to cancel the request for the readdressing of 36 wagons and send the wagons to the original destination of the cargo. The remaining 7 wagons will be redirected to Iran. Consent of Iran is obtained”.

    1. Ms Lobis also sent a letter to the Customs Authority on 18 January 2018 which made the following request:

“The company San Trade asks you to help and reconsign tankers in quantity of 38 ps which are going with fuel oil M-100 according to the Contract No B-016579 dd 17.072015, Annex 1 d.d. 24.12.2016, EKC 361171 (10.08.15) to dd 26.01.2017 to the Parto Tskali station to the address of “Intergral Petroleum” by order from “SAN Trade GmH”. Reconsignment should be carried out by old documents to the station Banderabas Iran via Akyayla to the address of company “San Trade”.

As well as repeating the request for reconsignment of these 38 RTCs from Integral to San Trade via Iran, the letter asked the Customs Authority to make a series of amendments to the Customs’ Declaration which were clearly intended to facilitate the delivery of the 38 RTCs to Iran. The letter also confirmed that payment in accordance with instruction No 38 dated 11 January 2018 had been completed.

    1. Mr Smith QC suggested that the letter did no more than partially countermand the document previously sent to the Customs Department on 12 January 2018. That letter had concerned the re-routing of 79 RTCs from Integral to the Defendants, whereas the 18 January 2018 letter was limited to 37 of those RTCs. On this basis, Mr Smith QC submitted that there had been no positive act in breach of the Morgan Injunction, merely a failure to re-route all (as opposed to some) of the RTCs. However, it is clear that the 18 January 2018 letter went beyond this:

i) The 12 January 2018 letter had given instructions in relation to the amendment of the consignment note but made no reference to the Customs Declaration. It was sent to the head of the customs post of the Ferry Crossing.

ii) The 18 January 2018 letter requested amendments to the Customs Declaration as well as the consignment note, referred to a consignment note of a different date and number, and was addressed to the head of the Lebap Customs.

iii) The statement of the Customs Department of 25 January 2018, to which I refer below, records a meeting concerned with “making amendments in relevant cells of Cargo Customs Declaration” in which the deputy chief of the Lebap Customs participated. That meeting identified the request made in the 18 January 2018 letter as the reason for amending the Customs Declaration.

    1. I have concluded that the 18 January letter was sent to the Lebap Customs to facilitate the transfer of 38 RTCs to Iran. The 38 RTCs comprised:

i) 37 of the 73 RTCs which had originally been diverted by the Defendants from Integral (i.e. all the remaining RTCs in this category after 36 RTCs had been re-routed back to Integral); and

ii) an additional RTC loaded following a separate payment by San Trade using its own funds.

    1. As I have mentioned, Ms Sanchouli exhibited a statement signed by senior employees in the Customs Department (and others) on 25 January 2018 entitled “on making amendments in relevant cells of Cargo Customs Declaration”. It stated:

“For the reasons stated in the letter No 36 dated January 18, 2018 from company “San Trade” under the contract number B-016579 … which was concluded on 17th July 2018 between the Turkmenbashi Complex of Oil Refineries and the company ‘San Trade’ … in the cargo customs declaration [numbers given] which was formalized at the customs post “Seydi” of the Lebap Region Customs, according to the terms of the contract, in cell 8 replace the entry … “Integral Petroleum …. on behalf of San Trade GMBH in Shore Tanks of Black Sea Terminal Georgia … with the entry “San Trade GMBH (Germany), UAE Dubai ……. Via Bander Abbas-Iran and the entry 07226 in the cell 29 replace with the entry 07324”.

    1. It is clear from this evidence that it was only on 25 January that the Customs Declaration for the 37 RTCs was amended to remove Integral and the reference to Georgia, and that this was done because of the letter sent by Ms Lobis on 18 January 2018 requesting such a change. In these circumstances, I cannot accept Ms Sanchouli’s evidence that “the Customs Department themselves ordered amendments to the Customs Declaration so [as] to send the RTCs to Iran and this was not done at San Trade’s request”. The statement expressly states the contrary.
    2. There can be no doubt, therefore, that the communications sent by Ms Lobis on 18 January 2018 involved a breach of paragraph 1 of the Morgan Injunction. The issue which then arises is whether I can be sure Ms Sanchouli instigated or failed to take reasonable steps to prevent Ms Lobis sending a letter in such terms.
    3. I have no doubt that this is the case:

i) Ms Sanchouli accepted that the instructions which she did give Ms Lobis involved a distinction between the 36 RTCs which (on the Defendants’ case) Integral had paid for, and the 37 RTCs which (on the Defendants’ case) they had not.

ii) However, the terms of the Morgan Injunction did not allow for any such distinction.

iii) Ms Sanchouli’s evidence that she only gave an instruction to Ms Lobis to re-route the 36 RTCs and gave no thought or instruction as to the remainder is, in my view, incredible. It is inconceivable that Ms Sanchouli did not have firmly in mind the 37 RTCs that the Defendants asserted Integral had not paid for – this was, as I have noted, one of their major grounds of objection to the Morgan Injunction.

iv) It is equally incredible that when being given these instructions, Ms Lobis would not have asked, or been told, what was to happen to the other 37 RTCs. The clear message from Ms Sanchouli must have been that it was, in effect, to be “business as usual” so far as these 37 RTCs were concerned, and an instruction that Ms Lobis should carry on doing whatever had to be done to send the 37 RTCs to Iran.

v) The instructions given by Ms Lobis in relation to the 7 RTCs to the Railways Ministry and the amendment to the Customs Declaration for all 37 cars implemented the instructions which Ms Sanchouli gave Ms Lobis even if (which I accept) Ms Sanchouli did not see a copy of Ms Lobis’ communications until February 2018.

vi) Further, it is noteworthy that Ms Sanchouli did not suggest that Ms Lobis had been instructed not to take any steps in relation to the other 37 RTCs. It must have been obvious to Ms Sanchouli, in the absence of such instructions, that Ms Lobis would carry on taking whatever steps were necessary to ship the 37 RTCs to Iran.

    1. Second, Mr Blackwood QC submitted that, although prohibitory in form, the injunction required the Defendants to take steps to stop the cargo being shipped to Iran because, for so long as the Railways Ministry were carrying it pursuant to the Defendants’ instructions, this involved an act by the Defendants in breach of the Morgan Injunction.
    2. Mr Smith QC challenged this submission, both as a matter of principle, and having regard to the way in which Integral’s case has initially been put. I am persuaded by both of those submissions, and I am not prepared to find that Ms Sanchouli was in contempt of court on this ground. There is a clear difference both legally and practically between a prohibitory and a mandatory injunction. The former does not generally require the respondent to incur any expenditure, and ordinarily creates no difficulty in supervision of performance. A mandatory injunction requires a respondent to take positive steps, and is much less readily granted. Paragraph 1 of the Morgan Injunction was prohibitory in form and could legitimately have been read and understood by the recipient as only requiring the Defendants to refrain from taking further positive acts.
    3. Construing the Morgan Injunction with the strictness appropriate in this context, I have concluded that paragraph 1 should not be read as requiring the Defendants to take positive steps such as interrupting a shipment which had already been consigned to a particular destination or requesting the Railways Ministry to change that destination. Either this would involve making an order which was prohibitory in form but mandatory in substance (cf Dowty Boulton Paul Ltd v Wolverhampton Corporation [1971] 1 WLR 204, 212), or an order of sufficiently uncertain scope that it could legitimately be interpreted by a respondent as not requiring it to take any positive steps, however easily accomplished.

J3 Ms Sanchouli, a de facto director of Petrogat and San Trade, failed to sign the letter in the form of the draft attached as Schedule C to the Order of Waksman J dated 26 January 2018 forthwith

    1. There can be no dispute that Ms Sanchouli did not sign the Schedule C Letter forthwith as required by the Waksman Injunction. Ms Sanchouli was made aware of the Waksman Injunction in the early hours of 27 January 2018. The draft letter was not signed until the morning of 29 January 2018. On no view can this be described as “forthwith”.
    2. Ms Sanchouli’s evidence was that she was at her sister’s wedding in Iran when she received notice of the Waksman Injunction, that she had poor telephone and internet connectivity, and that in signing the Schedule C Letter when she got back to the UAE on 29 January 2018, she acted reasonably and as soon as she reasonably could.
    3. I accept that Ms Sanchouli was at a wedding in Iran at the relevant time. However, I do not accept that she procured the signing of the amended Schedule C Letter as soon as she reasonably could. I am sure that it suited Ms Sanchouli and the Defendants that the Schedule C Letter be signed as late as possible, and that in taking no steps to ensure that the Schedule C Letter was signed before 29 January 2018, Ms Sanchouli was deliberately flouting the Waksman Injunction.
    4. I have reached this conclusion for the following reasons:

i) In the run-up to the hearing before His Honour Judge Waksman QC, Ms Sanchouli had instructed Stephenson Harwood ME LLP to appear at the return date, at which it was clear that Integral would be seeking a further order in relation to the Schedule C Letter, and at which the Defendants would be seeking to set the Morgan Injunction aside. For example, on 24 January 2018, Mr Kozachenko had informed Stephenson Harwood ME LLP that “the situation is even more urgent … bearing in mind that your clients have done nothing to comply with paragraph 2 of the order for almost two weeks”.

ii) It must have been clear to Ms Sanchouli that matters were very urgent and that the RTCs were or might well be on the move. At the hearing before His Honour Judge Waksman QC, Mr Cogley QC, representing the Defendants, stated on instructions that the cargo was likely to go over the border to Iran over the weekend (i.e. 27 to 28 January 2018).

iii) In these circumstances, it was clearly incumbent on Ms Sanchouli to take steps to ensure that the Schedule C Letter was signed as soon as possible after the hearing before His Honour Judge Waksman QC. If Ms Sanchouli’s personal commitments made this difficult, she need only have instructed Mr Beisenov or Mr Sonnenberg to sign on the Defendants’ behalf.

iv) I reject any suggestion that it was not possible for Ms Sanchouli to organise the signature of the Schedule C Letter while in Iran. It was Ms Sanchouli’s own evidence that during the course of the dispute, she was in regular phone and WhatsApp contact with her father who was located in Tehran. Stephenson Harwood ME LLP clearly had no difficulty in communicating the result of the hearing before His Honour Judge Waksman QC and in obtaining instructions from Ms Sanchouli when she was in Iran.

v) I am sure that, in circumstances in which she knew that RTCs were crossing into Iran over the weekend, it suited Ms Sanchouli to put off signing the amended Schedule C Letter until 29 January 2018.

K Mr Sanchouli

    1. I turn to Mr Sanchouli. He produced an affidavit but did not make himself available for cross-examination. There was no evidence before me which explained his failure to attend for cross-examination, even if only by video link. As I have explained above, Mr Sanchouli was aware that it would be open to the Court to draw an adverse inference against him by reason of his non-attendance.
    2. The legal principles for drawing an adverse inference from the absence of a witness are set out in an oft-quoted passage from Brooke LJ’s judgment in Wisniewski v Central Manchester HA [1998] PIQR 324, 340:

“From this line of authority I derive the following principles in the context of the present case:

(1)  In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.(2)  If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3)  There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4)  If the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”

    1. When addressing the evidence relating to Mr Sanchouli, I have considered whether there are grounds for drawing such an adverse inference on each issue.

K1 Mr Hosseinali Sanchouli, a de facto director of Petrogat and San Trade, failed to sign the letter in the form of the draft attached as schedule C to the Order of Morgan J dated 14 January 2019, whether by the stated deadline of 12:00 hours local time in Turkmenistan on 14 January 2018 or at all

    1. It was Mr Sanchouli’s evidence that he was not aware of the terms of the Morgan Injunction until after the deadline for compliance had expired. While Mr Sanchouli has not made himself available for cross-examination on that evidence, I am nonetheless unable to find to the relevant standard that Mr Sanchouli was aware of the Morgan Injunction in advance of the deadline for compliance, and certainly not sufficiently in advance of the deadline to have provided him with a meaningful opportunity to respond.
    2. I have reached this conclusion for the following reasons:

i) Mr Sanchouli does not speak English and would have been dependent on Ms Sanchouli to translate the terms of the Morgan Injunction to him.

ii) It was Ms Sanchouli who had principal responsibility for dealing with the letters coming in from Integral’s lawyers (which were in English). Mr Sanchouli could reasonably have proceeded on the basis that Ms Sanchouli would deal with the matter and keep him informed.

iii) The timing on 14 January 2018 is tight. While I am sure that Ms Sanchouli would at some stage on that day have informed her father about the Morgan Injunction and how she was dealing with it, I cannot be sure that this occurred before, and certainly any significant period before, the deadline for compliance.

    1. By contrast, I am sure that at a very early stage in the period between the expiry of the deadline for compliance, and the hearing before His Honour Judge Waksman QC, Mr Sanchouli was made aware of the terms of the Morgan Injunction, that the injunction was not being complied with, and that he knew of and supported Ms Sanchouli’s decision not to provide a letter in any form. On the evidence of both Mr and Ms Sanchouli:

i) Ms Sanchouli was in regular contact with Mr Sanchouli about the dispute with Integral and kept Mr Sanchouli up to date.

ii) Ms Sanchouli took all significant management decisions following discussions with her father, who was involved in all key-decision making.

iii) The dispute with Integral was clearly highly significant for the Defendants in financial terms. It was a dispute with which Mr Sanchouli was closely involved (as evident from his exchanges with Mr Mohseni).

iv) It was Mr Sanchouli’s evidence that “all the actions taken by my daughter in relation to the transaction with Integral the subject of this dispute were taken in consultation with me”.

v) It is, therefore, highly likely that Ms Sanchouli would have kept Mr Sanchouli up to date with developments and her strategy, including her approach to the Schedule C Letter, even if I cannot be sure that this had happened before the time for compliance.

    1. In these circumstances, the issue arises as to whether Mr Sanchouli can be liable in contempt for failing to take reasonable steps to ensure compliance with paragraph 1 of the Morgan Injunction after the time for compliance had expired.
    2. I am not satisfied that Mr Sanchouli can be found to be in contempt of the Morgan Injunction on this basis:

i) The authorities which hold that a director can be committed for a breach of an injunction made against the company are generally premised on the director’s involvement in the company’s breach. In Attorney-General for Tuvalu v Philatelic Distribution Corporation Ltd at p.936, the Court of Appeal stated that if the director “wilfully fails to take [reasonable] steps and the order or undertaking is breached” he can be punished for contempt. The Court of Appeal referred at p.938 to the issue of whether the second defendant was “party to the breaches”. In Dar Al Arkan v Al Refai [2014] EWCA Civ 715 at [33], Beatson LJ observed that “for a director or officer to be liable, it is necessary to show that he or she knew of and was responsible for the company’s breach of the court order, undertaking to the court or other contempt”. Similarly, in IPartner PTE Shipping Ltd v Panacore Resources DMCC [2014] EWHC 3608 (Comm), [24]-[25], Hamblen J also defined the principle as one concerned with the director’s role in relation to the company’s breach, as did Warren J in Phonographic Performance Ltd v Nightclub (London) Ltd [2016] EWHC 892 (Ch), [28].

ii) CPR Part 81.4(3), which provides the procedural basis for making a committal order against a director for the company’s breach of a mandatory injunction, provides for committal when the company is “required by a judgment or order to do an act” and “does not do it within the time fixed by the judgment or order”. In circumstances in which it is the company’s failure to do the act within the time ordered which provides the basis for committing the directors, the conduct on the part of the directors which makes committal appropriate would naturally be expected to be conduct relating to the company’s failure to perform the required act within the required time, rather than conduct occurring after the time for compliance has expired.

iii) If a director could be committed for contempt for failing to take steps to purge the company’s existing breach of a court order, the ambit of the contempt enquiry would be significantly widened not simply in time (for how long a period after the breach would the director remain exposed to an allegation of contemptuous failure to redress the company’s contempt?) but also in the considerations which might be relevant to the issue of the director’s liability (for example how far it was still possible to procure compliance, whether the breach in question was of a one-off rather than recurring in nature or whether circumstances had changed since the stipulated time for compliance).

iv) When a mandatory injunction requires a company to do a particular act by a particular date and this is not done, it is always open to the party who has obtained the mandatory order to seek a fresh order with a fresh deadline for compliance (which Integral did here through the Waksman Injunction), or to obtain an order which provides for a time for compliance but expressly provides that the obligation to comply continues thereafter.

    1. The law of contempt rightly places a significant premium on certainty and precision, and points which might be regarded as unattractive in the conventional cut-and-thrust of commercial litigation must be approached with particular care in the committal context.
    2. In any event, the suggestion that Mr Sanchouli was guilty of contempt for failing to take steps to cure a breach which had already occurred was one which only emerged clearly in closing submissions (for example the draft order served on the Defendants contains no such suggestion). In these circumstances, I am not satisfied that this ground of contempt is one of which Mr Sanchouli can fairly be said to have had notice when preparing his affidavit and taking his decision not to make himself available for cross-examination. This provides a further reason for my decision not to find that Mr Sanchouli had committed this head of contempt.

K2 In breach of paragraph 1 of the Order of Morgan J, Mr Hosseinali Sanchouli, a de facto director of Petrogat and San Trade, took steps in relation to the Cargo as defined by the Order of Morgan J, and took steps to direct the cargo to Iran

    1. I am satisfied that Mr Sanchouli committed this act of contempt, essentially for the reasons why I am similarly so satisfied in relation to Ms Sanchouli.
    2. There can be no dispute that Mr Sanchouli was aware of the terms of the Morgan Injunction prior to 16 January 2018. As I have stated, I am sure that over the period 16 to 18 January 2018 Ms Sanchouli took the decision that cargo which, on the Defendants’ case, had not been paid for by Integral, should continue to be shipped to Iran. I am also sure that the instruction which Ms Sanchouli gave to Ms Lobis were that it was, in effect, “business as usual” so far as that part of the cargo was concerned, and that Ms Lobis was to take such steps as might be necessary for that part of the cargo to continue its journey to the UAE via Iran.
    3. It is inconceivable that Mr Sanchouli was not involved in formulating this strategy, and that he did not approve of it. I have already set out the evidence as to his involvement in and approval of all key decisions taken by Ms Sanchouli in relation to the Cargo and the dispute with Integral. On Mr Sanchouli’s own evidence, on 16 January 2019 he discussed the decision to re-direct some of the cargo back to Integral, including sending “the necessary communications to the Railways Ministry and the Customs Department”, with his daughter. The belief that Integral’s entitlement to cargo was to be measured using the Contract rather than refinery price, and that, English court-orders notwithstanding, that was all they were to get, was one which I find to have been strongly held by Mr Sanchouli and Ms Sanchouli. While I have reached this conclusion without needing to draw an adverse inference from Mr Sanchouli’s failure to make himself available for cross-examination, my conclusion is reinforced by that inference, which I am satisfied it is appropriate to draw on this issue.

K3 Mr Hosseinali Sanchouli, a de facto director of Petrogat and San Trade, failed to sign the letter in the form of the draft attached as Schedule C to the Order of Waksman J dated 26 January 2018 forthwith

    1. I am also satisfied that Mr Sanchouli committed this ground of contempt. It is clear on his own evidence that he was aware of the hearing before His Honour Judge Waksman QC on 26 January 2018 because he gave instructions to the Defendants’ lawyers to tell the judge that “to [show] respect to his order we still kept some of the rail cars in Turkmenistan”. On his own evidence, he was with his daughter in Iran when Stephenson Harwood ME LLP relayed the outcome of the hearing. He would, therefore, clearly have been aware at around the same time as Ms Sanchouli about the Waksman Injunction, as he appeared to acknowledge.
    2. He was also aware of how urgent matters were. On his own evidence, he knew that several rail cars were still in transit from Turkmenbashi and had yet to cross the border at that point.
    3. I am sure that the decision that the letter would not be signed until 29 January 2018, notwithstanding the requirement to produce the amended Schedule C Letter forthwith and the obvious urgency of the situation, was a joint decision of Mr and Ms Sanchouli taken together, and that the reason for adopting this course was to play for time while more RTCs passed the point of no return.

L Is an order for committal appropriate?

  1. I accept that committal orders are exceptional orders, only to be used in exceptional cases (Arlidge, Eady & Smith para. 12-20). However, I am satisfied in respect of the three grounds of contempt which I have found to be established against Ms Sanchouli, and the two grounds of contempt I have found to be established against Mr Sanchouli, that these represented deliberate breaches of the Morgan and Waksman Injunctions for which committal is appropriate.
  2. I accept that Ms and Mr Sanchouli were acting at all times on the basis of what they genuinely believed to be their rights in their commercial dispute with Integral (albeit the effect of the LCIA Award is that their belief was mistaken). Further, the contempt occurred within a relatively narrow time period (14 to 29 January 2018) against a background of fast-moving events, with developments occurring in a number of different countries at or around the same time. Finally, both Ms Sanchouli and Mr Sanchouli have offered their apologies to the Court. These matters are likely to be material at the sentencing stage. However, they do not remove the essential seriousness of Ms and Mr Sanchouli’s contempt, which involved seeking to pre-judge the commercial dispute in the Defendants’ favour, in breach of orders of this Court intended to hold the ring while those issues were determined.
  3. I will ask counsel for further submissions on the issue of sentence, and any consequential matters.