Trafigura Pte Ltd & Anor v Emirates General Petroleum Corporation

Where a party has clearly breached orders of the court, leave to issue sequestration may be granted even though no assets are presently known within the jurisdiction. The creditor need not first identify property capable of being seized. If the debtor asserts that sequestration would be futile, the debtor bears the burden of demonstrating that point. A company officer who knowingly and actively participates in breaches of an injunction or freezing order may be committed for contempt. Sentences for separate breaches may be ordered to run concurrently.

The claimants applied for contempt orders against Emirates General Petroleum Corporation and its general manager, Mr Al Midfa. The application alleged breaches of an anti-suit injunction made by Flaux J and a worldwide freezing order made by Tomlinson J.

The defendant and Mr Al Midfa did not appear. The court first considered whether alternative service had brought the application to their notice. It then determined whether the orders had been breached, whether leave should be given to issue a writ of sequestration, and whether Mr Al Midfa should be committed for contempt.

1. Service and jurisdiction to determine the application. The application notice and supporting documents had been served by methods authorised by Cooke J, including email, fax, airmail and attempted courier delivery. The documents had been received and returned by the defendant. The court was satisfied that the application had been brought to the attention of both respondents and could proceed.
2. Breaches established. The court was sure that the defendant had breached Flaux J’s anti-suit injunction by commencing proceedings in Abu Dhabi concerning the contracts subject to the injunction. It had also breached Tomlinson J’s worldwide freezing order by failing to provide the required information concerning cargoes and worldwide assets.
3. Sequestration. The court followed the guidance in Hulbert v Cathcart [1896] AC 470. A creditor seeking sequestration need not identify particular property capable of satisfying the order. Where the debtor contends that sequestration would be futile, that is a matter for the debtor to establish. Although no assets were known to be within the jurisdiction, assets might enter it in future. Leave to issue a writ of sequestration was therefore granted.
4. Committal. Mr Al Midfa knew of the orders and had actively participated in the breaches. An order for his committal was therefore just, convenient and necessary. The appropriate sentence was 12 months for each breach, to run concurrently.
5. The costs of the application were summarily assessed at £50,000.

First-instance contempt application. No prior appellate history is stated in the judgment.