Lakatamia Shipping Co Ltd v Nobu Su/Hsin Chi Su (aka Su Hsin Chi; aka Nobu Morimoto) & Ors

In an unlawful means conspiracy, it is enough that one conspirator uses unlawful means. Another participant may be liable even if that participant’s conduct is lawful under foreign law. A conspirator must know the facts making the conduct unlawful, but need not know its legal unlawfulness. Deliberate blindness may establish the necessary knowledge. A standard Babanaft proviso in a worldwide freezing order may protect an overseas non-party from contempt proceedings, but it does not immunise that person from civil liability for conspiring with the order’s respondent to breach it. Questions concerning the developing Marex tort, including intention and justification, were left open.

Lakatamia claimed damages after funds subject to a worldwide freezing order were transferred to a company controlled by the first defendant’s mother. It alleged unlawful means conspiracy against all three defendants and the Marex tort against the second and third defendants.

After trial, the Deputy High Court Judge dismissed the claims. He found that the second defendant lacked knowledge of the freezing order and judgment debt, held that the third defendant benefited from the Babanaft proviso, and dismissed the claim against the first defendant because he could not conspire alone. The decision is reported at [2024] EWHC 1749 (Comm). The appeal concerned the factual finding about the second defendant, the scope of the proviso, and the alternative Marex claims.

1. Disposition. The appeal was allowed. The Deputy Judge’s order was set aside and judgment was entered for Lakatamia against all three defendants in unlawful means conspiracy.
2. Unlawful means conspiracy. The applicable elements include combination, intention to injure, concerted action, unlawful means and loss. Dishonesty is not required. At least one conspirator must use unlawful means; it is unnecessary for every conspirator to do so. Accordingly, even if Maître Zabaldano’s conduct was lawful under Monegasque law, that would not prevent liability for assisting Mr Su’s unlawful objective. The court relied on the principles summarised in FM Capital Partners Ltd v Marino [2018] EWHC 1768 (Comm) and Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19.
3. Knowledge and the second defendant. The Deputy Judge’s finding that Mr Chang did not know of the freezing order or judgment debt was plainly wrong. His role as a director of companies affected by the order, his involvement in the relevant companies and the surrounding circumstances made the finding untenable. If he deliberately turned a blind eye, that was sufficient to establish the relevant knowledge.
4. Babanaft proviso. The standard proviso limiting the effect of a freezing order on persons outside the jurisdiction did not provide Maître Zabaldano with a defence to civil liability for conspiracy. The Supreme Court’s decision in JSC BTA Bank v Khrapunov [2018] UKSC 19 was binding. It distinguished between immunity from personal penal sanctions for contempt and exposure to civil liability for assisting the respondent to breach the order. The Deputy Judge’s distinctions were untenable. The location of the conspiracy was relevant only to the jurisdictional issue under Article 5(3) of the Lugano Convention.
5. Marex tort. The court declined to decide whether honest belief defeats the mental element of the tort, whether justification is available, or whether professional obligations could establish that defence. Those issues should await a case in which they are critical and fully argued. The Monaco judgment and the letter from the Monaco Ordre des Avocats could not affect the result.

1. Court of Appeal (Civil Division). The appeal was allowed, the relevant order was set aside and judgment was entered for Lakatamia against all three defendants: [2025] EWCA Civ 1389.
2. High Court of Justice, King’s Bench Division, Commercial Court. Simon Colton KC, sitting as a Deputy High Court Judge, dismissed the claims after trial: [2024] EWHC 1749 (Comm).