African Export-Import Bank v The National Government of the Republic of South Sudan & Anor

Permission to apply for summary judgment may properly be granted where the claim has been validly served, the court has jurisdiction, and a reasoned judgment may assist enforcement abroad. A claimant need only have a reasonable belief that summary judgment will be more readily enforceable than default judgment.

The court may proceed in the absence of defendants who have received full notice, deliberately declined to participate, and are unlikely to attend following an adjournment. Clear contractual debt claims may be summarily determined where there is no factual dispute, no real prospect of a successful defence, and no other compelling reason for trial. Contractual jurisdiction, service-agent, immunity-waiver, interest and certification provisions were given effect.

Afreximbank claimed more than US$650 million from the National Government of South Sudan under three loan facility agreements. It claimed a further approximately US$640 million from the Bank of South Sudan under two guarantees and indemnities.

Neither defendant acknowledged service, filed a defence, or attended the hearing. The claimant sought permission to apply for summary judgment, permission for retrospective service of documents through the appointed process agent, and judgment on the merits. The central issues were whether the court could proceed in the defendants’ absence, whether service and jurisdiction were established, whether immunity applied, and whether the contractual debt and interest claims satisfied the summary judgment test.

1. Proceeding in absence. The defendants had received full notice of the proceedings and hearing, had declined to participate, and had given no indication that an adjournment would secure their attendance. Applying by analogy the factors identified in R v Jones [2001] EWCA Crim 168, and noting comparable applications in European Union v Syria [2023] EWHC 1116 and Certain Underwriters at Lloyd’s v Syrian Arab Republic [2018] EWHC 385 (Comm), it was appropriate to proceed.
2. Permission and service. Under CPR 24.4(1), permission was granted because the claims had been validly served, the English court had jurisdiction, and the claimant reasonably believed that a reasoned summary judgment would assist foreign enforcement. Service on the defendants’ appointed process agent at its current registered office was valid under CPR 6.11. Retrospective permission for service of other documents through that agent was justified under CPR 6.27.
3. Merits. The facility agreements and guarantees were clear and unambiguous. The repayment failures constituted contractual Events of Default, entitling the claimant to accelerate the debt and demand payment under the guarantees. The defendants had no real prospect of successfully defending the claims and there was no other compelling reason for trial, applying the principles summarised in European Union v Syria [2018] EWHC 1712 (Comm) and Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch).
4. Immunity. The contractual jurisdiction and waiver clauses constituted prior written agreements under section 2 of the State Immunity Act 1978. The loans, guarantees and indemnities were commercial transactions within section 3(1)(a) and section 3(3)(b). Neither defendant could successfully claim immunity.
5. Interest and judgment. Contractual interest, including interest calculated under the cost-of-funds fallback provisions after LIBOR cessation, was recoverable. Delayed notification caused no prejudice. Post-judgment interest at the agreed contractual rate could be awarded under section 44A of the Administration of Justice Act 1970, consistently with Novoship (UK) Ltd v Mikhaylyuk [2015] QB 499 and Law Debenture Trust Corp Plc v Ukraine [2017] EWHC 1902 (Comm). Summary judgment was entered for US$657,065,045.63 against the Republic and US$639,872,713.57 against the Bank, with continuing interest and indemnity costs.