AMNS Middle East FZE v LIQS Pte Ltd

A trial may proceed in a defendant’s absence where the defendant knew of the hearing and deliberately chose not to attend. Striking out a defence for non-attendance does not automatically entitle the claimant to default judgment; the claimant must ordinarily prove the claim. Witness statements served by an absent party do not become evidence unless the witnesses are called or the statements are admitted as hearsay.

In unjust enrichment, a failure of basis arises where retention of a payment was conditional on future performance which never occurred. A contractual agreement to agree may be unenforceable as to future performance while remaining binding in other respects. An umbrella agreement providing for advance payments may support restitution when its term expires without the anticipated supplies, unless the contract clearly allocates the risk otherwise.

The claimant sought restitution of US$52,803,513.90 paid to, or at the request of, the defendant under a ten-year contract for the purchase of steel products and related services. No steel or services were supplied. The defendant initially participated in the proceedings but later ceased to be represented, failed to comply with disclosure orders and deliberately did not attend the trial.

The court considered the procedural consequences of non-attendance, the evidential status of the defendant’s witness statements, whether the payments were made pursuant to the contract or pursuant to an alleged collateral arrangement, and whether the contractual basis for retaining the payments had failed. The court also considered change of position, limitation, interest and the defendant’s counterclaim.

1. Non-attendance and evidence. The court proceeded with the trial under CPR 39.3 because the defendant knew the trial date, deliberately chose not to attend and sought no adjournment. The defence was struck out, but default judgment was not entered automatically. The claimant still had to prove its claim. The defendant’s witness statements were not evidence because the witnesses were not called and no hearsay application was made under CPR 32.5(1) (paras 17–33).
2. Unjust enrichment. The claimant proved that the payments were made at its expense and that the defendant was enriched by receipt, whether or not the defendant later transferred the money to other group companies. Enrichment is assessed at receipt and does not require proof that the benefit remains with the defendant. The question whether a party is benefited by a payment made to a third party is one of fact, including whether the payment was requested or ratified (paras 113–126, 142–149).
3. Failure of basis. The payments were made pursuant to the contract, not pursuant to the defendant’s alleged collateral arrangement. The contract’s provisions concerning future supplies were agreements to agree and were not enforceable as obligations to supply particular products, but the contract remained binding where its terms were sufficiently certain. The advance payments were conditional on future supply or an agreed settlement process. When the ten-year term expired without any supply, the contractual basis had failed and restitution became available (paras 150–184).
4. Payments to third parties. Payments made to third parties at the defendant’s request were treated by the parties as advance payments to the defendant under the contract. Later-executed requests and the signed balance confirmation supported the same conclusion for the remaining payments. The defendant’s unexplained failure to provide accounting records justified adverse inferences, without reversing the burden of proof (paras 185–200).
5. Defences and limitation. The change-of-position defence failed because the defendant had not shown that it transferred the money as alleged and, in any event, knowingly assumed the risk of being unable to recover it. The limitation period ran from the failure of basis, not from the dates of the individual payments. The failure occurred when the ten-year term expired on 1 December 2023, so the claim issued in 2021 was not time-barred (paras 201–211).
6. Disposition. Judgment was entered for the claimant for US$52,803,513.90, with interest at 1% over US Prime from 2 December 2023 to judgment. The counterclaim was dismissed. Costs and the precise form of order were reserved for further submissions (paras 212–224).