Vitol SA v Capri Marine Ltd & Ors (No. 2)

A post-judgment disclosure order may support enforcement of the judgment, including enforcement against assets alleged to be held by a related company in another jurisdiction. Such use is not necessarily collateral to the proceedings in which disclosure was given. When deciding whether to permit use of disclosed documents abroad, the court should consider the nature of the original proceedings, the circumstances of disclosure and the nature of the proposed proceedings. It should not assess the foreign claim’s prospects in detail unless the claim is abusive, bound to fail or obviously unsustainable. A contractual jurisdiction clause concerning the original contract does not ordinarily govern proceedings to enforce the resulting judgment against non-parties under the law of the enforcement forum.

Vitol had obtained judgment against Capri Marine Ltd for approximately US$6.8 million after Capri’s liability had been admitted and its remaining defences had been abandoned. Capri remained substantially unsatisfied. In post-judgment enforcement proceedings, Vitol obtained disclosure concerning Capri’s assets and sought to use that material in Maryland proceedings involving the attachment of a vessel owned by Spartacus Navigation Corporation and managed by Primerose Shipping Co Ltd.

Capri applied for an anti-suit injunction, relying on the charterparty’s English law and jurisdiction clause. It also sought to set aside permission granted to Vitol to use disclosed documents in Maryland. The central questions were whether the Maryland proceedings fell within the clause and whether use of the documents was permissible under the post-judgment disclosure regime.

1. The anti-suit application was dismissed. The charterparty clause required disputes arising from the charterparty, and the relations between its parties, to be determined under English law and in the English High Court. The Maryland proceedings instead concerned enforcement of the English judgment against non-parties and the availability of their assets for execution. The contractual rights and obligations had merged in the judgment. Questions concerning enforcement were for the court of the forum in which assets were found and according to the applicable local law.
2. Capri could not establish that Vitol’s conduct was vexatious or oppressive. Capri had no sufficient legal standing to complain merely because property allegedly beneficially owned by others had been arrested. The court also regarded Capri’s position as an unpromising basis for discretionary relief, given its assertion that it lacked assets while funding its own legal representation.
3. Permission to use the documents in Maryland was properly granted. Post-judgment disclosure had a dual purpose: identifying assets subject to freezing relief and locating assets against which execution could be pursued. The court possessed a free-standing power under Supreme Court Act 1981, section 37(1), now the Senior Courts Act 1981, to order disclosure necessary to render a judgment effective.
4. Use of the documents to enforce the judgment was not collateral to the proceedings. The policy of the law was that a judgment creditor should normally have the information needed to execute the judgment anywhere in the world. The court was not required to decide whether Maryland would pierce the corporate veil or whether Vitol would ultimately succeed there.
5. Following Sybron Corporation v Barclays Bank plc [1985] Ch 299, the court should refuse permission if the proposed proceedings were abusive or obviously unsustainable. Otherwise, permission depended on the nature of the original proceedings, the circumstances in which disclosure was given and the nature of the proposed proceedings. Vitol’s Maryland case was not shown to be obviously unsustainable. It was therefore just and convenient to permit use of the documents.
6. Both applications in Capri’s application notice dated 27 January 2010 were dismissed.

First-instance decision. The judgment records an earlier decision concerning service of a CPR 71 order: [2009] Bus LR 271.