Lakatamia Shipping Company Ltd v Nobu Su
| Jurisdiction | Cayman Islands |
| Judge | Ingrid Mangatal |
| Judgment Date | 27 June 2017 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NOS. FSD 142 of 2014 (IMJ) and FSD 89 of 2016 (IMJ) |
| Date | 27 June 2017 |
The Hon. Justice Ingrid Mangatal
CAUSE NOS. FSD 142 of 2014 (IMJ) and FSD 89 of 2016 (IMJ)
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FINANCIAL SERVICES DIVISION
Foreign judgment and Consequential Orders — Application for summary judgment — Order 14 of the Grand Court Rules (1995 Revision) — Whether defence with real prospects of success — whether fair or reasonable probability of real or bona fide defence — Judgment not being impeached on grounds of fraud — but impeached on grounds of public policy — Whether violation of right to a fair trial — Section 7 of the Bill of Rights, Cayman Islands Constitution Order 2009 — Whether judgment capable of being impeached on grounds obtained in breach of natural justice
Mr. A Jackson of Appleby on behalf of the Plaintiff
Mr. M Wingrave of Dinner Martin on behalf of the Defendant
The application that I heard in January was the Plaintiff Lakatamia Shipping Co Limited's (“Lakatamia”) summons seeking that it be granted summary judgment on the whole of its claim pursuant to O. 14 r. 1 of the Grand Court Rules 1995 (Revised Edition) (the “ GCR”).
I wish to thank Counsel on both sides for the quality of their submissions and their patience in awaiting the Judgment.
On 3 August 2016, I made an order, pursuant to Order 4, r. 4(1) of the GCR, that Cause Nos. FSD 142 of 2014(IMJ) (“the first action”) and FSD 89 of 2016(IMJ) (“the second action”) be consolidated.
In the first action, Lakatamia sought to enforce a judgment in its favour given by the High Court of England and Wales (the “English Court”), together with interest.
On 16 January 2015, following the commencement of the first action, a further hearing took place in the English Proceedings (defined below) to determine matters consequential upon the trial of the action. The second action was commenced by Lakatamia to enforce the consequential judgment as well as a judgment of the Court of Appeal of England and Wales.
The Amended Statement of Claim in the first action, pleads that on 24 March 2011, proceedings were issued by Lakatamia, as first claimant, against the Defendant Nobu Su (“Mr. Su”), in the English Court with cause number 2011 Folio 357 (the “English Proceedings”).
Six companies connected to Mr. Su were joined as second to seventh defendants to the English Proceedings. In addition to Lakatamia there were three other Claimants in the English Proceedings, but none of those claimants, the pleading states, have obtained a judgment or order from the English Court which may be enforced in the Cayman Islands and accordingly they do not presently seek to participate in these proceedings.
Lakatamia sought in the English Proceedings to recover damages from Mr. Su and the other Defendants to those proceedings for breach of contract.
The English Proceedings were deemed served on Mr. Su in accordance with the order of the English Court dated 8 January 2013 and Mr. Su submitted to the jurisdiction of the English Court in respect of those proceedings. In particular Mr. Su participated fully in the English Proceedings to contest the claims against him and instructed solicitors and leading and junior counsel to represent him, including at a trial of the substantive merits of the claim. This took place over 8 court days in October and November 2014. Mr. Su gave evidence in chief by his witness statement and attended the trial for cross-examination.
The Amended Statement of Claim pleads that Mr. Su is therefore bound by the English Judgment and the English Order (each defined below), for the reasons set out in paragraph 9, above.
Following the substantive trial in the English Proceedings, the presiding Judge, Mr. Justice Cooke, handed down a fully-reasoned judgment dated 5 November 2014 (“the English Judgment”). In addition the English Court handed down an Order (entitled “Judgment”), also dated 5 November 2014 (the “English Order”).
With respect to Lakatamia's claim for damages, paragraph 1 of the English Order provides that judgment is given against Mr. Su and his co-defendants, jointly and severally, for the sum of US$37,854,310.24 (the “Judgment Debt”).
Paragraph 2 of the English Order required Mr. Su and his co-defendants, jointly and severally, to pay the Judgment Debt to Lakatamia by 4:00 p.m. on 19 November 2014.
On 16 January 2015, a further hearing took place in the English Proceedings to determine matters consequential upon the trial of the action. At that hearing, the English Court made an Order (the “Consequential Order”) that Mr. Su and his co-defendants jointly and severally, are to pay to Lakatamia:
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(a) The additional sums of US$2,321,300.50 and US$7,520,900 (the “ Consequential Debts”) in accordance with paragraph 163 of the English Judgment by 4:00 p.m. on 13 February 2015; and
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(b) Interest on the Judgment Debt at the judgment rate (being the statutory rate of 8% per annum, or US$8,296.84 per day) from 20 November 2014, and at the same rate on the Consequential Debts from 13 February 2015.
By reason of Mr. Su and his co-defendants pursuing an appeal against the English Judgment, Appeal Ref: 2014/4180 (the “English Appeal”), the execution of paragraph 2 of the English Order (to which paragraph 13 above refers) and the enforcement of the entitlement to interest on the Judgment Debt under the Consequential Order were ultimately stayed until 12 June 2015, when the Court of Appeal of England and Wales made an Order, amongst others, that the stay of execution ceased to have effect.
On 22 July 2015, the English Court made a further Order upon consent (the “ CFO Order”) that the sum of US$7,379,204.28, which was then held in the Court Funds Office (the “ CFO Sum”) to the credit of the sixth defendant to the English Proceedings, be paid to Lakatamia in part satisfaction of the debts due to it.
The CFO Sum was received by Lakatamia on 6 August 2015 and applied toward the payment of post judgment interest which had accrued on the Judgment Debt and the Consequential Debts up to that date, and towards the partial payment of the Consequential Debts.
Lakatamia pleads that the English Order is final and conclusive and for a certain sum, being the Judgment Debt.
In the first action, the relief sought by Lakatamia is the entry of a judgment in the Grand Court against Mr. Su in the amount of the Judgment Debt (US$37,854,310.24).
Alternatively, without prejudice to Lakatamia's primary position, as pleaded at paragraph 19 above, if the CFO sum must be treated as having been applied upon the date of receipt only toward payment of the Judgment Debt, Lakatamia seeks the entry of a judgment in this Court against Mr. Su in the sum of US$30,475,105.96.
Lakatamia also claims interest pursuant to section 34 of the Judicature Law (2013 Revision) at such rate and for such period as the Court thinks fit.
In the second action, the relief sought by Lakatamia is entry of a judgment in this Court against Mr. Su in the following amounts:
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a) US$4,987,228.80 (being the balance of the Consequential debts following the application of the CFO Sum on 6 August 2015 as aforesaid);
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b) US$350,881.89 (being interest on the balance of the Consequential Debts from 7 August 2015 to 22 June 2016 inclusive: 321 days at the rate of $1,093.09 per day);
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c) US$2,663,285.64 (being interest on the Judgment Debt due under the English Order from 7 August 2015 to 22 June 2016 inclusive: 321 days at the rate of $8,296.84 per day);
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d) £1,259,498.54 (being the total of the Costs and the Appeal Costs);
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e) £130,953.97 (being interest on the Costs from 16 January 2015 to 22 June 2016 inclusive: 523 days at the rate of £250.93 per day); and
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f) £2,130.61 (being interest on the Appeal Costs from 1 April 2016 to 22 June 2016 inclusive: 83 days at the rate of £25.67 per day).
Alternatively, without prejudice to Lakatamia's primary position, as set out in paragraph 22 above, if the CFO Sum must be treated as having been applied upon the date of receipt only toward payment of the judgment debt due under the English Order, Lakatamia seeks the entry of a judgment in this Court against Mr. Su in the following amounts:
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a) US$9,842,200.50;
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b) US$1,069,966.24 (being interest on the Consequential Debts from 13 February 2015 to 22 June 2016 inclusive: 496 days at the rate of $2,157.19 per day);
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c) US$4,207,778.86 (being interest on the Judgment Debt due under the English Order prior to and following the application of the CFO Sum, calculated as follows: $2,157,178.40 from 20 November 2014 to 6 August 2015 inclusive: 260 days at the rate of $8,296.84 per day; $2,144,113.08 from 7 August 2015 to 22 June 2016 inclusive: 321 days at the rate of $6,679.48 per day);
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d) £1,259,498.54 (being the total of the Costs and the Appeal Costs);
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e) £130,953.97 (being the interest on the Costs from 16 January 2015 to 22 June 2016 inclusive: 523 days at the rate of £250.39 per day); and
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f) £2,130.61 (being interest on the Appeal Costs from 1 April 2016 to 22 June 2016 inclusive: 83 days at the rate of £25.67 per day).
Further, or in the alternative, Lakatamia claims interest pursuant to section 34 of the Judicature Law (2013 Revision) at such rate and for such period as the Court thinks fit.
Mr. Jackson indicated that for the purposes of this Summary Judgment application, his client is prepared to accept Judgment in the lower sums claimed in the alternative, and to accept that the CFO Sum should be treated as properly applied upon the date of receipt towards payment of the Judgment Debt.
At paragraph 3 of the Defence filed 5 August 2016, Mr. Su denies that the English Judgment and the Orders, or any of them, are binding on him for the reasons alleged in the respective...
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