Lakatamia Shipping Company Ltd v Nobu Su (aka Hsin Chi Su aka Nobu Morimoto) & Ors

On an application to serve a foreign defendant out of the jurisdiction, the claimant must establish a good arguable case under at least one jurisdictional gateway, a serious issue to be tried, and that England is the proper place for trial.

For conspiracy claims, intention to injure may be inferred where the defendant deliberately uses unlawful means knowing that injury to the claimant will result. The defendant’s predominant purpose need not be to injure the claimant, and justification is not a defence to unlawful means conspiracy.

Where the claim concerns dissipation of assets in breach of English freezing orders and judgments, and co-conspirators will be tried in England, those matters may strongly support England as the forum conveniens.

The claimant sought to continue claims against a Monégasque lawyer arising from the transfer of sale proceeds from Monaco to a foreign company. The claims alleged unlawful means conspiracy, causing loss by unlawful means, and intentionally and knowingly inducing violation of rights under English judgment debts.

The defendant challenged service out on three grounds: failure to satisfy the tort, property, and necessary or proper party gateways; absence of a serious issue to be tried; and the contention that Monaco was clearly and distinctly the more appropriate forum.

The alleged conduct concerned assets said to be beneficially owned by a judgment debtor and subject to an English worldwide freezing order. The central questions were whether the gateways and merits threshold were met, and whether England was the proper place for trial.

1. Jurisdictional threshold. The claimant satisfied the three requirements for service out: a good arguable case under a gateway, a serious issue to be tried, and England as the proper place for trial. On disputed facts, the court should consider whether there is a plausible evidential basis that the claimant has the better argument. On disputed law, a jurisdiction challenge is generally unsuitable for resolving controversial questions in a developing area or conducting a mini-trial.
2. Gateways. The tort gateway was satisfied because the claimant had a good arguable case that the dissipation reduced the value of English judgment debts, causing damage in England. The word “damage” in CPR PD 6B, paragraph 3.1(9)(a), has a broad meaning and is not confined to damage necessary to complete the tort. The property gateway was also satisfied because the judgment debts were intangible property situated in England. The necessary or proper party gateway was satisfied because there were real issues to be tried against the anchor defendants and the foreign defendant was alleged to be a co-conspirator whose conduct would necessarily be examined at trial.
3. Serious issue to be tried. The pleaded facts, unless demonstrably untrue or unsupportable, established a real prospect of success. Disclosure might materially add to or alter the evidence. Conspiracy claims are commonly proved by circumstantial evidence, and the evidence should be assessed cumulatively and in the round rather than compartmentalised.
4. Unlawful means conspiracy. The relevant ingredients were combination, unlawful means, intention to injure, concerted action, causation, and loss. Dishonesty was not required. At least one conspirator, rather than every conspirator, had to use unlawful means. Contempt of court and steps to prevent enforcement of judgments could constitute unlawful means. Intention to injure could be established where the defendant deliberately acted with knowledge of consequences which would injure the claimant, or where the defendant’s gain and the claimant’s loss were inseparably linked. Justification was not a defence.
5. Other torts. The same intention analysis supported serious issues to be tried on causing loss by unlawful means and the Marex tort. The disputed content and effect of Monégasque law, and the defendant’s state of mind, were matters for trial. The defendant could have sought guidance from the English court if he considered that compliance with the instruction conflicted with the freezing order.
6. Forum conveniens. England was clearly the appropriate forum. The English freezing order and judgments were at the heart of the claims; the anchor defendants would proceed to trial in England; separate proceedings in Monaco created a risk of inconsistent judgments; the damage was suffered in England; English law was likely to apply; disclosure and documentary evidence favoured England; and key witnesses were English-speaking or resident in England. The connecting factors with Monaco were comparatively weak.
7. Disposition. The jurisdictional challenge failed. The defendant’s application was dismissed.

This was a first-instance jurisdictional decision of the High Court (Commercial Court). The judgment records related proceedings and earlier decisions in the same litigation, but no appeal from the present decision.