Vitol SA v Arcturus Merchant Trust Ltd [2009] EWHC 800 (Comm)

[2009] EWHC 800 (Comm)Case No 2008 folio 1116Date Wednesday 11 th March 2009
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
COMMERCIAL COURT
Before
THE HONOURABLE MR JUSTICE BLAIR
Between
ARCTURUS MERCHANT TRUST LIMITEDDefendant
B E T W E E N:
Transcript from a recording by UbiqusCliffords Inn, Fetter Lane, London EC4A 1LDTel: 020 7269 0370
Mr Julian Kenny (instructed by Ince & Co) appeared for ClaimantMr Phillip Bliss Aliker (instructed by Addie & Co) appeared for Defendant
JUDGMENT
[1]There are three applications before the court. The first is the application of the defendant, Arcturus Merchant Trust Limited, to set aside or to stay these proceedings. The second is the application of the claimant, Vitol SA, for an anti-suit injunction. The third is the claimant’s application for summary judgment.[2]The facts in brief are that the claimant is a well-known trading company. One of its businesses is selling petroleum products into West Africa. A large part of this trade is carried on by delivering products to its customers to tankers from what have been called ‘mother ships’ which are in fact large tankers themselves. These vessels carry the product from its country of origin and then stay for a short period of time at anchorage off-shore Cotonou in Benin to deliver the product to the claimant’s customers by ship-to-ship transfer there. This kind of delivery is called ‘DES’; delivery ex-ship.[3]The claimant, which is a Swiss company, is represented in Nigeria by a company called Mansel Commercial Services Limited. Mansel is a Nigerian company but it is wholly owned by the claimant and exists to provide the claimant with agency services there. It has an office in Lagos and employs among others Mr Ian Brown as head of its operations.[4]The defendant company is a Nigerian oil and gas trading company established in 1998. It is also a supplier of automative gas oil (AGO) in Nigeria. There are three officers of the company who are relevant to these proceedings. The first is Mr Adeniyi Adeoye who is the defendant’s CEO and who also owns most of the shares in the company. He is clearly a successful international businessman. The other two people I should mention are Mr Stilian Mitakev who was the defendant’s chief operating officer at least until September 2008. The third is Mr Sanya Akinyemi who was the defendant’s general manager with responsibility for shipping until January 2009.[5]Dealings between the parties began at July 2008 when Mr Mitakev was introduced to Mr Brown of Mansel by the defendant’s bankers, a Nigerian bank called Skye Bank. That meeting led to a contract which was made on the 23rd of July 2008. The terms, which are the claimant’s standard terms for this type of contract, were confirmed by a contract note sent the following day.[6]Under this contract, the claimant supplied the defendant with 5,000 metric tonnes of gasoil in early August 2008. There is no dispute as to this contract. However it is to be noted that oil prices were particularly volatile at this time. The current dispute between the parties relates to a second agreement which is said to have been made on the 4th of August 2008 and again confirmed on the claimant’s standard terms the following day, that is the 5th of August 2008.[7]Before coming to the detail, I should state that it is common ground that an agreement was reached on the 4th of August 2008 by the claimant represented by Mr Brown of Mansel and by Mr Mitakev. This agreement was for the sale of about 5500 metric tonnes of gasoil. That was 500 tonnes more than had been agreed a few weeks earlier in July. However, the defendant says that Mr Mitakev had neither actual nor ostensible authority to enter into this second agreement on its behalf. It is accepted by Mr Aliker, who has argued the case well for the defendant, that under normal circumstances Mr Mitakev as chief operating officer would at least have had ostensible authority to buy for the defendant whether he had actual authority or not.[8]However it is submitted that the claimant was on notice of his lack of authority. The question of notice has been the main issue between the parties. The claimant submits that Mr Mitakev was probably authorised in fact, alternatively that it had no notice to the contrary. On that basis, it submits that the court has jurisdiction under clause 20 of its standard terms that provides as follows, ‘LAW AND JURISDICTION This contract shall be governed by and construed in accordance with English law. Any controversy, dispute or claim whatsoever arising out of or in connection with this contract or the breach thereof shall be subject to the exclusive jurisdiction of the High Court of Justice in London. For the avoidance of doubt this will not prevent either party from taking proceedings in any other jurisdiction to obtain security or ancillary relief or to enforce any order or judgement.’[9]The claimant further submits that on the basis of that clause, which is of course an exclusive jurisdiction clause. It is entitled to an anti-suit injunction restraining certain proceedings that the defendant has brought in Nigeria. Finally it submits that the defendant has no real prospect of successfully defending the claim and so seeks summary judgment. The defendant, on its behalf, maintains that this is not a case for an injunction, and further submits that factual disputes relating to the second contract show that the potential defence exists which should go forward to trial. In broad terms that is the ambit of the dispute between the parties. The facts[10]In his first witness statement of the 2nd of March 2009, Mr Adeoye explains that part of the defendant’s procedures are that there must be before every transaction a board resolution for the bank authorising the transaction and authorising him as CEO as the sole signatory of the contract. He produces such a resolution in relation to the first contract. He goes on to deal with the issue of notice to the claimant as follows. Given the importance of this, I should set out the relevant paragraph from his witness statement verbatim. It is paragraph 15 and it reads as follows, ‘On the single occasion that the defendant ever entered into a binding contract for the supply of 5,000 metric tonnes of gasoil in July 2008, the defendant had represented to the claimant’s representatives in Nigeria Mansel… that I as Chief Executive Officer of the defendant company and the single largest shareholder was the only executive officer authorised to enter into a binding contract with the claimant.’[11]This is the only evidence that the claimant was on notice of the alleged lack of authority on the part of Mr Mitakev, and it gives rise to the obvious question as to who on the part of the defendant made this representation. It is to be noted that the defendant was asked by the claimant’s solicitor’s letter of 4th of March 2009 who it was that made this representation. This point has not been answered. That in itself might carry little weight but for the fact that there has been further evidence from the defendant including from Mr Adeoye which is dated the 9th of March 2009 and in which this issue, which is obviously a central one, has not been addressed. Be that as it may, Mr Adeoye fairly accepts in his witness statement that when he did meet with Mr Brown of Mansel following the completion of the first contract, he did not at that time see the relevance of pointing out Mr Mitakev’s authority to bind the company. In his evidence, I should say that Mr Brown denies that any such representation was made.[12]As I have mentioned, the second contract was apparently entered into on 4th of August and the contract note sent on 5th of August 2008. Mr Brown’s evidence is to the effect that Mr Mitakev and Mr Akinyemi came to his office on 4th August and an agreement was concluded then and there. Mr Adeoye says that he was not aware of, and had no knowledge of, any second contract being entered into. He says that there was no board resolution. He says that he was on a business trip to South Korea at the time returning to Nigeria on 9th August 2008, and has produced copies of his passport. He says that he only discovered the existence of the alleged second contract when it was brought to his attention by the defendant’s bankers.[13]He draws attention to what appears to be an internal memo dated the 15th August 2008. This is directed to ‘COO’, in other words the defendant’s chief operating officer, Mr Mitakev. In it, he asks, ‘Please give reasons why you entered into a purchase contract…’ and then the number is given, ‘despite: a) your knowledge of the berthing delay we had on the last cargo we purchased and b) the drop of prices in local purchase c) the current market situation in sales of AGO’.[14]Taking that document at its face value, it objects to the entering into of the contract on commercial grounds. It does not suggest that Mr Mitakev had no authority to enter into the contract, as one would have expected on the defendant’s case. According to Mr Adeoye, Mr Mitakev was last seen at his company’s offices on the 19th September 2008. He says that he reported his actions to the police and also to the Economic and Financial Crimes Commission, which is an anti-corruption agency in Nigeria. He says that he thinks that Mr Mitakev was intent on defrauding the company of the sum of US$250,000 which had been paid by way of deposit for the first contract, and which the claimants rolled over in relation to the second. He also believes that companies like the claimant try to stifle indigenous shipping companies like his own by presenting bogus claims.[15]However there are further documents which are important in casting light on the matter. There is a letter of the 16th September 2008 which purports to be from Mr Adeoye to Mr Brown. In it, it is stated, ‘We hereby write to request for the cancellation of the above stated contract with you.’ [I interpose to say that this is a reference to the second contract.] ‘This has become necessary due to 26 days’ berthing delays of our last cargo purchased from you and the recent sharp drop in local pricing and the lull in the sale of AGO ... We hereby appeal for leniency as we are new customers to Vitol and also to enable us to continue our transactions with your organisation.’[16]The claimant submits (correctly in my view) that this letter is inconsistent with the case now put forward to the effect that Mr Mitakev had no authority to enter into the second contract on behalf of the defendant. In that regard, Mr Adeoye says in his witness statement that the letter was not written on his instructions, nor was it authorised by him. In support, Mr Akinyemi has said in a witness statement that it was in fact he who signed the letter on instructions from Mr Mitakev. He says that, ‘Whilst I had reservations, I did not want to be seen as disobeying a senior officer of the company.’ He does not explain why he should have in effect forged Mr Adeoye’s signature. Further doubt is placed on the defendant’s explanation by the fact that Mr Adeoye himself appears to have been in Lagos at this time. I shall come back to this letter later.[17]Following this letter, there was a meeting on 18th September 2008 between Mr Adeoye and Mr Brown. Mr Adeoye says (again fairly) that he does recall confirming that Mr Mitakev was no longer with the company, but did not allude to the fact that he did not have the authority to bind the company. The following day Mr Brown wrote to the effect that so long as the deal was completed the claimant would agree to reduce all penalties on the contract to US$300,000.[18]There then follows a letter of the 24th September 2008 which Mr Adeoye does accept that he signed. This informs the claimant of the defendant’s intention to change the laycan on the contract because:
‘Our ship is on a charter to load at Warri refinery but due to delays by the refinery it became apparent that the vessel cannot be available for this laycan date.’
[19]The claimant asked for urgent confirmation that the contract would be performed on 26th September 2008. On 6th October 2008, in the absence of such confirmation, it treated the defendant’s conduct as a repudiatory breach of contract bringing the contract to an end.[20]On 29th October 2008, the claim form in this action was issued for service in Nigeria pursuant to an order of Mrs Justice Gloster made on 28th October 2008. The claim form and particulars of claim were served on 5th November. Under the terms of Mrs Justice Gloster’s order, the defendant had until 22nd November to acknowledge service. In fact, it acknowledged service on 20th November 2008. When it acknowledged service, the defendant’s solicitors did not state that it intended to contest the jurisdiction of the English court. I will come back to that point shortly.[21]On 26th November 2008, the defendant issued a writ of summons in the Federal High Court of Nigeria in Lagos. No permission was granted to serve that out of the jurisdiction on the claimant at its registered offices in Switzerland. The defendant’s claim in the Lagos proceedings is for(a) what is in effect a declaration that the second agreement is null and void, and(b) an order that Mansel and the claimant are jointly liable for the return to the defendant of the US$250,000 which, as I have said was paid by way of a security deposit.[22]To return to the English proceedings, on 20th December 2008 the defendant filed a defence denying liability and stating that it wished to dispute the jurisdiction of the English court. On 23rd December 2008, an application was issued accordingly. The claimant’s two applications were issued on 9th February 2009. The defendant’s application to set aside service[23]The principles on which the court deals with this kind of case are well established. First, the claimant must show in respect of its claim that it has a ‘good arguable case’ that it falls within a relevant sub-paragraph of what is now Practice Direction B of CPR Part 6. In the present case, that is sub-paragraph 6(d), namely that the contract contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract. Second, the claimant must show that there is a serious issue to be tried in respect of the claim which it is seeking to make. This is not in dispute in the present case. Third, the claimant must persuade the court that England is clearly the appropriate forum for a trial action. The burden is on the claimant in all of these respects.[24]I should add that the claimant is a Swiss company, and that the requirement in article 17 of the Lugano Convention (which is the equivalent of article 23 of the Judgments Regulation) that it is ‘clearly and precisely demonstrated’ that the parties actually agreed to any clause conferring jurisdiction is met by the English law standard of a ‘good arguable case.’ Applying that standard, the claimant must show that it has a much better argument than the defendant that on the material available at present, the requirements of form in article 17 are met and that it can be established, clearly and precisely, that the clause conferring jurisdiction on the court was the subject of consensus between the parties: see Bols Distilleries v Superior Yacht Services [2007] 1 Lloyd’s Rep 683 at paragraph 28, applied in Deutsche Bank AG v APBW [2008] 2 Lloyd’s Rep 177.[25]Other than the points he makes on the evidence, Mr Aliker for the defendant submitted at the hearing that that jurisdiction clause came in standard documentation after the meeting on 4th August, that is on 5th August 2008,and so was not incorporated in the contract if there was one. Indeed he said that this was his main point. However I cannot accept this submission. It is plain in my view that, because of the course of dealing between the parties (and subject to the authority point) the contract entered into on 4th August 2008 was on the claimant’s standard terms. As sent on 5th August, these terms were in the same form as the terms sent in respect of the first contract on 24th July 2008. In my judgment, they are binding in respect of both contracts.[26]The defendants had a further argument based on what were said to have been preconditions to the contract. This is developed in paragraph 13 of the witness statement made by the defendant’s solicitor Ms Owusu-Amponsah on 23rd December 2008. She says that the defendant contends that in order for there to be a binding contract, it would have to complete the following steps which are set out in the attached contract: a) agree the price which was stated as dollars US$1175.00 per metric tonne, b) nominate the vessel to take delivery alongside the claimant’s vessels, c) pay a refundable security deposit of $250,000, and d) pay the contract price by fully secured, fully operative and workable irrevocable documentary letter of credit to be issued no later than 8th August 2008.[27]But the alleged preconditions find no support in the terms of the contract as set out in the contract note. I agree with Mr Julian Kenny, counsel for the claimant, that there is no evidence to back this contention, which is really by way of legal submission, and which I do not accept in the absence of any evidence in support. Furthermore, by their nature at least some of these conditions are very unlikely to have been agreed by the claimant, since they would in effect have given the defendant a veto on whether there was ever a binding agreement at all.[28]There can in my view be no question that the claimant has satisfied the requirement of a good arguable case in respect of the existence of the contract and the inclusion of the exclusive jurisdiction clause within the contract. On the assumption (which in my view is a questionable one) that Mr Mitakev did not have actual authority to enter into the contract, there is clearly a good arguable case that he had ostensible authority. The only real question on this issue is whether the claimant can go further and satisfy the test for summary judgment, a question to which I shall come later.[29]The defendant submits that even if the claimant has shown to the required standard that there was an exclusive jurisdiction agreement between the parties, England is not the forum conveniens, and that the court shold stay the claim on that basis. I reject that submission. Where the parties have agreed an exclusive jurisdiction clause, that choice of forum overrides considerations of convenience at least insofar as the conveniences or inconveniences in question were foreseeable at the time when the contract was made: see the discussion of the authorities in Import Export Metro v Compania Sud Americana De Vapores S.A. [2003] 1 Lloyd’s Rep 405 at pages 410 and following.[30]In those circumstances the challenge to the court’s jurisdiction fails. I should add that the criminal investigation that is apparently ensuing in Nigeria does not in my view require that the exclusive jurisdiction clause be overwritten on grounds of comity.[31]That being my conclusion, I need not decide the further point raised by the claimant that by failing to tick the box on the acknowledgment of service to the effect that it did not intend to contest the court’s jurisdiction, the defendant has submitted to the jurisdiction. I am very unsympathetic to that argument. In all the circumstances I do not think that there was any unequivocal representation that objection was not going to be taken to the English court’s jurisdiction. On the contrary, the defendant made it quite clear that jurisdiction would be contested and the claimant can have been in no doubt in that regard. The application for an anti-suit injunction[32]I come now to the application for an anti-suit injunction. The principles are not in dispute. Where the applicant shows that he is a party to an exclusive jurisdiction clause the court will issue an anti-suit injunction to prevent a breach of the clause unless there are strong reasons for not doing so. In Donohue v Armco Inc [2002] 1 Lloyd’s Rep 425 at 422 to 433, Lord Bingham said as follows: ‘If contracting parties agree to give a particular court exclusive jurisdiction to rule on claims between those parties, and a claim coming within the scope of the agreement is made in proceedings in a forum other than that which the parties have agreed, the English court will ordinarily exercise its discretion …by restraining the prosecution of proceedings in the non-contractual forum abroad … to secure compliance with the contractual bargain unless the party suing in the non-contractual forum … can show strong reasons for suing in that forum.” The court may also issue an anti-suit injunction where it is oppressive or vexatious for the respondent to bring or pursue proceedings in a foreign jurisdiction: see Societe Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871.[33]Other than the issue as regards the existence of the contract which I have dealt with already, Mr Aliker relies on a decree called the Nigerian Admiralty Jurisdiction Decree which gives the Nigerian courts (he submits) a mandatory jurisdiction in this kind of case. I think that Mr Kenny was right to object that foreign law is a question of fact, and has to be proved by evidence. The defendant provided no evidence to show the existence or applicability of the provisions relied upon. It may or may not be the case, as Mr Kenny submits, that the Admiralty Decree applies to admiralty matters, and as a contract for the sale of oil this contract is not an admiralty matter. I simply am not able to form a view as to whether that is correct or not. But in my judgment, even where a foreign law is shown to have the effect in a foreign territory of conferring exclusive jurisdiction on the courts of that territory, that is not a strong reason for the courts of this country to refuse an anti-suit injunction.[34]This is shown by OT Africa Line Ltd v Magic Sportswear Corpn [2005] 2 Lloyd’s Rep 170, in which proceedings had been begun in the Toronto courts. Section 46 of the Canadian Maritime Liability Act 2001 provided for proceedings in Canada. At paragraph 32,

Lord Justice Longmore said as follows:

‘In the case of exclusive jurisdiction clauses however, comity has the smaller role. It goes without saying that any court should pay respect to another (foreign) court but, if the parties have actually agreed that a foreign court has sole jurisdiction over any dispute, the true role of comity is to ensure that the parties’ agreement is respected. Whatever country it is to the courts of which the parties have agreed to submit their disputes is the country to which comity is due. It is not a matter of an English court seeking to uphold and enforce references to its own courts; an English court will uphold and enforce references to the courts of whichever country the parties agree for the resolution of their disputes. This is to uphold party autonomy, not to uphold the courts of any particular country’
. I would follow that statement, which was applied to the Toronto courts in the OT Africa case, and in the present case I respectfully apply it in respect of the proceedings in the Lagos court on the same reasoning.[35]There is a final point made by the defendant, namely that the Lagos proceedings fall outside the terms of the exclusive jurisdiction clause. This is based on the fact that the second part of the claim relates to the security given of US$250,000. However the first part of the claim relates to the existence of the contract itself, and this is plainly a question that the parties have referred to the exclusive jurisdiction of the London court. In my view the claimant has made out the claim for an anti-suit injunction against the defendant.[36]I shall now consider the position of Mansel which is also a party to the Lagos proceedings. Mansel is a wholly owned subsidiary of the claimant. It acted at all times solely as the claimant’s agent. In Nigeria to all intents and purposes it stands in the shoes of the claimant. In my view, Horn Linie v Pan Americana [2006] 2 Lloyd’s Rep 44 is authority for the proposition that an exclusive jurisdiction clause can cover the claims made against an agent in such circumstances so as to bring such a claim properly within the ambit of the anti-suit injunction. In my view the claimant has made out a good case including both principal and agent in the terms of the injunction in the present case. Summary judgment[37]That brings me to the final question before me, which is whether the claimant should be entitled to summary judgment and if so for how much? The test is whether the defendant has no real prospect of successfully defending the claim. The defence (leaving aside questions as to damages) is as to authority, as I have already indicated. As I said, the defendant accepts, and I should say rightly accepts, that given Mr Mitakev’s position as its chief operating officer, and the fact that he alone concluded the first contract on behalf of the defendant, he did have ostensive authority to bind the defendant as to the second contract unless the claimant was on notice as to his alleged lack of authority.[38]I have already explained that the only evidence that the claimant was on notice is in paragraph 15 of Mr Adeoye’s witness statement. I have noted that this misses the vital information as to who from the defendant company made the alleged representation as to the alleged limits on Mr Mitakev’s borrowing. I have mentioned the request for this information, and the fact that it has not been supplied. As I have explained, all the other evidence points firmly in the opposite direction. I leave aside in this regard Mr Brown’s witness statement to the contrary, because that is one word against another. But I do accept Mr Kenny’s other submissions. The defendant’s case is inconsistent with the first contract which was entered into by Mr Mitakev and him alone. It is also inconsistent with the defendant’s subsequent contract which plainly proceeds on the basis that the second contract was binding as well. I cannot accept Mr Aliker’s submission that the claimant would perhaps have doubted Mr Mitakev’s authority because the deal was a bad one. The claimant has demonstrated that it was a deal at or about the market price when made. Much more likely, in my view, is that it was a deal that the defendant came to regret as the oil price collapsed shortly after it was entered into.[39]There is a further point that in my view removes any doubt, and which I have not yet mentioned. As I explained earlier, the terms of the letter of 16th September 2008—if the letter is genuine—are inconsistent with the defendant’s case. At the least, if genuine it would show that the defendant has no defence to the claimant’s alternative contention that the contract has been ratified. The defendant as I have said contends that Mr Adeoye’s signature was added by way of forgery. This appears to me to be inherently improbable, and I shall not repeat what I said earlier in that regard. But it is a fact that in the Lagos proceedings the defendant has pleaded its case as follows. In paragraph 12, it has stated, ‘The Plaintiff’ [that is to say the defendant in these proceedings] ‘on discovering the contract, wrote to the 1st Defendant’ [that is to say the claimant in these proceedings] ‘on 16/908 to request for cancellation of the contract.’ Thus the letter of 16th September 2008 is pleaded in, and relied on, by the defendant in its proceedings before the Federal High Court in Lagos.[40]Mr Aliker submits that this was clearly a mistake, and the defendant is to seek leave to amend. But this confirms my view that the defendant has no real prospect of successfully defending this claim. In my opinion, the claimant is entitled to summary judgment. As to amount, there is no dispute as to the difference between the contract price and the market price. The number in that regard is about US$1.99million, and the claimant should have judgment for this sum. There is a further case for demurrage, which is not pursued at the summary judgment stage.[41]There is a yet further claim based on clause 12 of the claimant’s standard terms for carrying charges, that is to say liquidated damages in respect of the financing and administrative costs of keeping the cargo available for delivery during the period up to the termination by the claimant of the contract in October 2008. This at the rate of 50 cents a day per metric tonne, and amounts to about US$142,000. The clause is headed, ‘Delay Penalty Clause’ and on that basis the defendant suggested in argument that it might be a penalty. I do not think for a moment that this clause is a penalty. It has all the hallmarks of a genuine pre-estimate of damage. But I do agree with Mr Aliker that, on the evidence, the defendant is entitled to say that there is an issue as to the proper period in respect of which the carrying charges are payable. For that reason, I do not think that the claimant is entitled to summary judgment in respect of this sum. I shall now hear the parties as to any matters arising. MR KENNY: My Lord, we ask first of all that you make an order giving permission to amend our statement of claim and form that has been shown to the court. MR JUSTICE BLAIR: Well I suspect that is not in dispute. MR KENNY: Secondly, that there be a judgment for the figure of $1.9million as shown- MR JUSTICE BLAIR: Well make sure you get right the exact precise number. MR KENNY: Thirdly, we ask for interest on that sum from the date of termination of the contract at the usual rate that is given in this court i.e. US prime. MR JUSTICE BLAIR: That is not a very large number though is it? MR KENNY: It is not, but we are asking for it- MR JUSTICE BLAIR: No, well Mr Aliker, I do not know what you say about that. MR ALIKER: I do not resist it. MR JUSTICE BLAIR: No, thank you. MR KENNY: Sorry may I just? MR JUSTICE BLAIR: Yes. MR ALIKER: I am asking that there be a declaration that Vitol is entitled to retain the security deposit that must follow from the judgment that has been given. MR KENNY: In diminution at the sum owed, absolutely. MR JUSTICE BLAIR: Yes, thank you very much. Again, I will leave you to draft the order and agree it with Mr Aliker, Mr Kenny. MR KENNY: The court will want I imagine to look at the terms of the anti-suit injunction that is on the court file at tab five. MR JUSTICE BLAIR: Yes. MR KENNY: It is possible, two approaches are possible. Either the court considers making a final anti suit injunction on the basis that the, everything that is necessary for the claimant to establish, it has been established by the judgment that has been given. MR JUSTICE BLAIR: You do envisage two orders by the way. You envisage perhaps a number of orders. How many orders do you envisage? MR KENNY: I envisage two orders, one of a money judgment and the second an anti-suit injunction. MR JUSTICE BLAIR: Yes. MR KENNY: My Lord, you can do it either as a final anti-suit injunction or as an interim anti-suit injunction pending trial of the outstanding issues. MR JUSTICE BLAIR: You asked for an interim order. MR KENNY: I applied for an interim, it may be that one prefers to have a final, but I am not going to press for a final anti-suit, I am happy to have an interim pending trial. MR JUSTICE BLAIR: Right. MR KENNY: Until further order. MR JUSTICE BLAIR: Yes, right. MR KENNY: Well on that basis subject obviously to updating the dates I have no amendments to propose with respect to the draft that is in tab five save perhaps to clarify to avoid any doubt in paragraph one at page 19 of the bundle the words, ‘Either against Vitol or against Mansel’ be added to the end of that paragraph. MR JUSTICE BLAIR: Yes, would you prefer the Vitol one or-? MR KENNY: My Lord, it is clear as a matter of drafting that- MR JUSTICE BLAIR: I had planned to ask to have that made clear subject to any point Mr Aliker may have. MR ALIKER: The proposed amendment that is made is to add the words at the end of paragraph one. MR KENNY:
‘Either against Vitol or against Mansel.’
MR ALIKER: ‘Either against Vitol’… Yes, yes. It makes it clear. MR JUSTICE BLAIR: I agree. MR KENNY: My Lord then there is just one other matter not directly related to rising from the judgment that you have just given. In front of, on your desk you will see a third witness statement of Mr Brown. MR JUSTICE BLAIR: It was handed in this morning, and I certainly did not read it. MR KENNY: I would just ask you to read that now by way of introduction you will recall from Mr Brown’s statement that he said that Mr Adeoye proposed a meeting that instead of High Court English jurisdiction the dispute should be resolved using the EFCC as an arbiter and that he perceived this as a threat. His witness statement refers to the fact that coincidentally with yesterday’s hearing the EFCC arrived at Mansel’s offices yesterday. He suspects that this is another collateral attack on the jurisdiction of this court and that an attempt has been made to intimidate Mansel. I am not proposing to take this any further but we want to put that evidence on the court file at this stage in case that other matters arise in relation to this. MR ALIKER: Well My Lord, I just received a copy of this witness statement this morning. MR JUSTICE BLAIR: I had it then as well, and I thought it was wrong to read it before giving judgment. MR ALIKER: Right. MR JUSTICE BLAIR: So I have not read it. MR ALIKER: My Lord, yes. I can say so that it is on the court record that I understand because of the involvement of Mr Mitakev and the contact that he has made with the claimant this information was passed on to the relevant authorities who have been looked for Mr Mitakev and have not been able to find him. That may have actually precipitated the visit that occurred yesterday. I am asked to say to the court that no unfairness or oppressive conduct should be, it should not be regarded as intended to undermine the court, I think that is the way that it is put in the witness statement. It is simply trying to move matters on. MR JUSTICE BLAIR: Do you mind if I just very quickly read it now? Well, Mr Kenny it can go on the court file, but I think it is right to say in case it is relevant it is not a letter that I have taken into account in my judgment this morning in any way nor could I. MR KENNY: I think it is right that you should clarify that. I will draw up an order agreeable to my learned friend and we will send it to you for signing. MR JUSTICE BLAIR: Right and costs will be assessed? MR KENNY: With respect to costs we would ask that you make a summary assessment of the costs and there is a costs schedule that has been filed with the court. MR JUSTICE BLAIR: Yes, I had not really been as far as that. MR KENNY: The hearing was less than a day, as you know it spilled over to this morning. MR JUSTICE BLAIR: Yes. MR KENNY: We would ask you to make a summary assessment. MR JUSTICE BLAIR: Well then you will have to take me through it. MR ALIKER: My Lord, I did ask for a copy first thing this morning. I dare not say that one has not been served on those instructing me. MR JUSTICE BLAIR: Well I seem to have got three here. You can have one of mine. MR ALIKER: Right, thank you very much indeed. MR KENNY: Well, I hate to do this My Lord. MR JUSTICE BLAIR: Do what? MR KENNY: I think there are three separate schedules. MR ALIKER: Right, in respect of the three separate applications. MR JUSTICE BLAIR: Three separate applications. MR ALIKER: I was going to say the figure seemed a bit low. MR KENNY: Yes. MR JUSTICE BLAIR: Can I ask what you have - MR KENNY: I am not sure which order you are holding them in but there is a schedule in relation to our application for summary judgment, a schedule in relation to the application for an anti-suit injunction and one in relation to the defendant’s application to challenge the jurisdiction. MR JUSTICE BLAIR: Right. MR KENNY: These represent a very small allowance in respect of the outstanding issue of demurrage, the costs of the action, in other words all the costs that have been incurred on the claimant’s side. MR JUSTICE BLAIR: Well there should be an allowance. Which one do you want to take first? MR KENNY: Well can we begin with the costs of the defendant’s application to challenge the jurisdiction? MR JUSTICE BLAIR: Yes. MR KENNY: The total costs as you see are £15,000. That includes counsels’ fees of £3,000 and £11,000 in preparation of the evidence, possibly best to look at all three together because in effect what is happening is that there has been a pro-rating of costs which were incurred in relation to the preparation of- MR JUSTICE BLAIR: Yes. Right, so that is that the first one. MR KENNY: There is then the application for the anti-suit injunction which is £22,000 and the summary judgment which is £30,000. I should say that these were served to my learned friend on Friday. MR ALIKER: On Monday. MR KENNY: On Monday and that no specific response has been received in respect of any of the items claimed. You will appreciate that there are, there have had to be a number of substantial witness statements produced examining the detail of this transaction. You may have seen the costs incurred by the defendant. Have you seen the defendant’s schedule of costs? MR JUSTICE BLAIR: No. MR KENNY: Can I pass that to you? That is £32,000 in total so- MR JUSTICE BLAIR: For the whole thing? MR KENNY: For the whole shooting match which is significantly less, but then we have had first of all to prepare our own case and then respond to Mr Adeoye’s case. You can see the volume of material that has been produced and the care with which that has been produced. MR JUSTICE BLAIR: Well in terms of them bringing the matter to a conclusion on both sides from stage one to the final stage, for both parties’ costs these were relatively little. If you want them summarily assessed, then you will have to allow for a rough and ready approach. MR KENNY: We understand that. MR JUSTICE BLAIR: Yes. Mr Aliker, what would you like to say? MR ALIKER: Well My Lord, I will only say maybe two points. Firstly, the evidence such as it is on the claimant’s side was pretty compelling I have to say. I mean notwithstanding the submissions that were made by me. So, to that extent it was a fairly straightforward case. The other point that I make of course is that those instructing my learned friend are very experienced in these matters and would have had all the issues to hand. It was simply a matter of preparing witness statements from Mr Brown, Mr Cranston and Mr Kaye and some correspondence. They are asking for costs in the sum of some £68,000, I think it is £68,000? MR KENNY: It is £68,000 yes. MR ALIKER: Nearly £70,000 is very, very steep. Those are the only two points that I make. MR JUSTICE BLAIR: That is helpful. MR ALIKER: Of course the substantial duplication in respect of all of that because the way that Your Lordship treated the submissions made to Your Lordship, the evidence was the same. It was just, it really was orders that were different. MR JUSTICE BLAIR: Mr Kenny, I should say this in case there are people listening or wondering. Your instructing solicitors’ fees are wholly reasonable as between solicitor and client. There is nothing unreasonable about the charges, and the rates if anything are on the competitive side. However, where a party seeks summary assessment of costs it means that the task is done there and then, and it is the practice of the courts to take a rough and ready approach. Now, the total you claim is about £68,000. I think Mr Aliker is right that it is hard practically to distinguish between the three applications. I shall give you a choice. Either I will assess the costs at £50,000 now, or if that is not satisfactory to you, there will be a detailed assessment. You can take instructions. MR KENNY: We would prefer summary assessment. MR JUSTICE BLAIR: Yes, well then I will assess the costs at £50,000. MR KENNY: My Lord yes. MR JUSTICE BLAIR: Yes. MR ALIKER: My Lord, just one minor matter that relates to the content of Your Lordship’s judgment, I do not know whether or not it is going to be transcribed but I heard Your Lordship refer to when dealing with the question of the evidence at paragraph 15, a misrepresentation rather than a representation and it could convey the wrong meaning. MR JUSTICE BLAIR: It certainly could, and thank you for drawing that to my attention. There will only be, I think, a transcription if it is requested. MR KENNY: We certainly want to have a transcript of Your Lordship’s judgment. Can that be done through the court office or do I need to something else? MR JUSTICE BLAIR: Your instructing solicitor will know more about that than I do. MR KENNY: Right. MR JUSTICE BLAIR: Thank you all very much. I am really grateful to all of you. End of judgment.

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