Nopporn Suppipat & Ors v Nop Narongdej & Ors

The court holds that a coordinated scheme to strip REC/WEH assets and place them beyond the reach of the claimant creditors constituted an unlawful act under Thai criminal law (section 350 Penal Code) and therefore gave rise to civil liability under section 420 and joint liability under section 432 TCCC. By contrast, the principal pleaded misrepresentation claims failed (largely time‑barred or not proved). Remedies include restitution/tracing of management shares received as secret commissions and compensation corresponding to the sums due under the arbitral awards that would have been recoverable but for the asset‑stripping scheme.

Background: The claimants were the ultimate owners of a Thai holding company (REC) which held a majority stake in a Thai renewables group (WEH). Transactions in mid‑2015 transferred REC to purchasers associated with the first defendant; later transfers and steps moved WEH shares out of REC. The claimants alleged (1) fraudulent misrepresentations inducing the REC share disposals (the "Global Transaction") and (2) a subsequent asset‑stripping/"ring‑fencing" scheme to defeat recovery (misleading valuations, back‑dated documents, onward nominee transfers and diversion of proceeds).

Procedural history: Extensive 20‑week trial in the Commercial Court (Calver J). Related ICC arbitrations between the parties produced partial awards in favour of the claimants; enforcement and collateral proceedings were pursued in Thailand, BVI and Hong Kong. The court was asked to determine UK proceedings raising both English law causes of action (in part) and a number of causes governed by Thai law.

Core judicial question: whether (a) the defendants made actionable fraudulent misrepresentations; and (b) whether the subsequent transfers and concealment of WEH shares were unlawful (criminally and civilly) so as to make the defendants jointly and severally liable for the losses that the claimants would have avoided or recovered.

Key holdings and disposition

1. Disposition. The court dismisses the pleaded misrepresentation claims insofar as they rely on section 341 Penal Code (fraud by false representation) because those claims are time‑barred or not made out on the evidence. However, the court finds that a coordinated asset‑stripping scheme was unlawful under Thai criminal law (section 350 Penal Code) and gives rise to civil liability under section 420 TCCC and joint liability under section 432 TCCC.
2. Misrepresentation claims.
   • The judge accepted that the defendants (in particular the first defendant and an associate) made representations about a combined nominee‑sale and buy‑back structure (the "Global Transaction") in mid‑2015, but concluded the civil claims based on section 341 were time‑barred because that criminal offence is compoundable and a complaint was not lodged within the three‑month period required by Thai criminal prescription rules; accordingly the civil remedy under section 420 TCCC could not be sustained on that basis.
   • Other alleged misrepresentations (the so‑called Watabak and payment representations) either failed to be established or were governed by Thai law and likewise failed for limitation or proof.
3. Asset‑stripping claims (principal and accessory liability).
   • The court found, on extensive documentary and witness evidence, that certain defendants (notably the purchaser, his associate, counsel who advised on the structure, and senior WEH managers) conspired to transfer, remove and conceal WEH shares so as to prevent the claimants (creditors under the REC SPAs and the related arbitral process) from obtaining payment. The plan included transfer to nominees, termination of shareholder‑blocking agreements, back‑dating valuation and board documents, and onward transfers to SPVs and family‑related entities.
   • The transfers and concealment were a dishonest scheme to deprive the claimants of enforcement value and therefore constituted the section 350 Penal Code offence (cheating against creditors). That offence constituted an "unlawful act" for the purposes of section 420 TCCC and the primary participants were jointly liable for the resulting loss.
   • Secondary recipients and nominees (offshore SPVs, family purchasers and the managers' holding companies) were held liable as instigators/assistors or joint wrongdoers under section 432 TCCC and accordingly are jointly bound to make compensation, subject to the court's discretion as to apportionment.
4. Remedies.
   • The court awarded a compensatory approach under Thai law (section 438 TCCC): the appropriate counterfactual was that, but for the asset‑stripping, the purchasers would have been able to satisfy the arbitral awards. The court therefore assessed damages corresponding to the arbitral awards and interest that would have been recoverable but for the stripping (calculations to be performed as directed by the court because of post‑judgment calculations of compound v simple interest and sums already credited in enforcement steps).
   • Separately, the management recipients held their 1.25% shares on constructive trust for the claimants as secret commissions/unauthorised profits; the claimants are entitled to trace and recover those shares (or the traceable proceeds) from the managers' holding companies.
5. Jurisdictional and procedural points.
   • The court declined to exercise or consider an English insolvency (s.423) remedy in the absence of a sufficient connection with England and Wales: the transactions and defendants were overwhelmingly foreign (Thai and offshore), and the court would have been reluctant to exercise the specific equitable discretion in s.423 in the circumstances. The Thai criminal complaint lodged in January 2018 and subsequent English proceedings were held sufficient to preserve limitation for the Thai law causes of action relied upon by the claimants.
   • The court rejected the allegation that the claimants could not obtain a fair trial in Thailand: the evidence proffered was general and speculative and did not show a real risk of inability to obtain a fair hearing.
6. Procedural outcome. The court ordered compensation and proprietary remedies in favour of the claimants against those defendants found jointly liable; it dismissed other heads of the claim (notably the section 341 misrepresentation causes of action) as time‑barred or unproven. The judge directed that accounting of credits and interest be calculated and that parties agree a suitable undertaking to prevent double recovery from awards and this judgment before final enforcement steps are ordered.

• High Court (Commercial Court) – judgment handed down by Mr Justice Calver: [2023] EWHC 1988 (Comm). Action determined after 20‑week trial; remedies and directions given (see judgment for detail).
• Lower courts/arbitral decisions relevant to factual context: the ICC tribunal issued First Partial Awards (22 Sep 2017) and a subsequent award on Remaining Amounts (17 Mar 2023) (see judgment for references). Enforcement steps taken in the BVI and Thailand (set out in judgment).