Cruz City 1 Mauritius Holdings v Unitech Ltd & Ors

The court has jurisdiction under Senior Courts Act 1981, section 37(1), to order a judgment or arbitration award debtor subject to its jurisdiction to disclose worldwide assets in aid of enforcement. The order may be made as a free-standing mandatory injunction and does not require a supporting freezing injunction. The fact that officers verifying the disclosure may be abroad does not convert the order into one against persons outside the jurisdiction. In arbitration matters seated in England, service on solicitors who acted in the arbitration may be permitted where they have not been disinstructed and there is good reason for expedition. The enforcement purpose of the proceedings supports a broad construction of an arbitration claim.

The claimant sought worldwide asset disclosure from three defendants to assist enforcement of two LCIA awards. The awards had been made in arbitrations seated in London, and Cooke J had permitted enforcement under section 66(1) of the Arbitration Act 1996 in the same manner as judgments.

The defendants challenged service on their former solicitors and argued that Masri v Consolidated Contractors International (UK) Ltd (No 4) restricted the court’s power to order disclosure where relevant officers were outside the jurisdiction. The issues were whether alternative service was valid, whether the claim was an arbitration claim, and whether worldwide disclosure was just and convenient.

1. Service. The application to set aside the orders permitting service on Skadden was dismissed. In arbitration applications concerning arbitrations seated in England, the Commercial Court’s established practice is to permit service on a party’s solicitor who acted in the arbitration, provided the solicitor does not appear to have been disinstructed and there are no special circumstances against that course. The need for a prompt hearing in support of enforcement constituted good reason for alternative service.
2. Arbitration claim. A claim to enforce arbitral awards is an “application affecting arbitration proceedings” within CPR Part 62.2, even though the application for disclosure was made under section 37(1) of the Senior Courts Act 1981. CPR Part 62.2 should be construed in light of the policy that judgments and arbitration awards should be enforced.
3. Jurisdiction to order disclosure. Masri v Consolidated Contractors International (UK) Ltd (No 4) concerned an order under CPR Part 71 directed to a non-party officer outside the jurisdiction. It did not prevent an order under section 37(1) against judgment or award debtors who were subject to the court’s jurisdiction. A requirement that disclosure be verified by an officer abroad did not alter the identity of the parties against whom the order was made.
4. Exercise of discretion. The principles in Maclaine Watson & Co Ltd v International Tin Council (No 2) and The Naftilos supported a free-standing disclosure order in aid of execution, whether or not a freezing injunction existed. The claimant had contractual rights to payment, permission to enforce the awards as judgments, and insufficient information about the defendants’ assets. Worldwide disclosure had the potential materially to assist enforcement and was therefore just and convenient.

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