“On21 February 2017 , Cresta’s other director (Mr Garrett) had resigned, stating in an email to Ms Chao, “I understand thatmy resignation is necessary”, Ms Chao stating to Mr Garrett, “We understand your intention…Please can we process the unanimous agreement to transfer funds from lawyer between you and Mr Chang of directors of Cresta…, then we will process the resignation procedure…” to which he replied, “I am no longer a Director of Cresta…so this is not within my authority”
“There is no reason why the same principle [that it is not normally appropriate in a summary procedure to decide a controversial question in law in a developing area] should not apply to the question whether, in a service out of the jurisdiction case on the ‘necessary or proper party’ head, a claim is ‘bound to fail’ as well as to the question whether there is a ‘serious issue to be tried’ in the claim against D2.” 15 Therefore the court may, but is not bound in law to, decide any legal question arising whether it is under the merits limb or the gateway limb. No doubt an important factor in deciding whether to do that will be the fact that the question goes to the jurisdiction of the court. If the point goes to jurisdiction and it can be decided summarily then no doubt it should be. However another important factor is the warning against deciding controversial points of law in a developing area on assumed or hypothetical facts. This concern does not cease to apply simply because the point arises in a jurisdiction application (whether under the merits test or the gateways). It is always an important factor to bear in mind.”
“The "gateways" are available in respect of both torts as … (ii) in respect of both torts, Mr Head concedes that there is a question as to damage suffered within the jurisdiction …”
“62 As the judge held at para 110, in Conversant Wireless Licensing SARL v Huawei Technologies Co Ltd[2018] EWHC 808 (Pat) , [108]–[110], Henry Carr J decided that the UK designations of European patents were property within the jurisdiction for the purposes of this gateway. I agree with that conclusion.”
“the origins of all conspiracies are concealed and it is usually quite impossible to establish when or where the initial agreement was made or when or where other conspirators were recruited. The very existence of the agreement can only be inferred from overt acts. Participation in a conspiracy is infinitely variable: it can be active or passive. If the majority shareholder and director of a company consents to the company being used for drug smuggling carried out in the company’s name by a fellow director and minority shareholder, he is guilty of conspiracy. Consent, that is agreement or adherence to the agreement, can be inferred if it is proved that he knew what was going on and the intention to participate in the furtherance of the criminal purpose is also established by his failure to stop the unlawful activity”. 61. In Kuwait Oil Tanker Co SAK v Al Bader (No. 3) [2000] 2 All E.R. (Comm) (”
“It is, however, the essence of a successful case of circumstantial evidence that the whole is stronger than individual parts. It becomes a net from which there is no escape . That is why a jury is often directed to avoid piecemeal consideration of a circumstantial case: R v Hillier (2007) 233 ALR 63 (HCA), cited in Archbold 2012 at para 10-3. Or, as Lord Simon of Glaisdale put it in R v Kilbourne[1973] AC 729 [1973] AC 729 758 , ’Circumstantial evidence … works by cumulatively, in geometrical progression, eliminating other possibilities’ . The matter is well put in Shepherd v R(1990) 170 CLR 573 (HCA) at 579/580 (but also passim): ‘… the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.’ 64. Rix LJ’s observations are of general application (see, for example, Kazakhstan Kagazy Plc v. Zhunus[2017] EWHC 3374 (Comm) at [159]per Picken J). Of course, what Rix LJ stated in Ablyazov (including as to ”a net from which there was no escape” ) was stated in the context of contempt where the standard of proof is to the criminal standard namely “ beyond reasonable doubt” / “ satisfied so that you are sure “ (in terms of a direction to a jury) where the “ net “ metaphor is particularly apt. However, care needs to be taken in utilising a similar metaphor where the standard is that of balance of probabilities. Something can be proved on balance of probabilities even if all other possibilities have not been excluded, which is why Lord Millett in Three Rivers referred to some fact which tilts the balance and justifies (for example) an inference of dishonesty in a particular case. Nevertheless, the points that are made that it is the essence of a successful circumstantial case that the whole is stronger than the individual parts, and that circumstantial evidence works cumulatively, are equally apt in a context such as the present, and allegations of unlawful means conspiracy against various individuals and entities. 65. In this regard, and consistently with Rix LJ’s observations, in evaluating the evidence it is best to avoid compartmentalising particular points relied upon, or treating points in “silos”, or adopting a piecemeal approach to evidence relied upon; rather it is appropriate to take account of ”previous findings in considering the likelihood of the later facts having occurred” or, in other words, to ”stand … back and consider … the effects of the implications of the facts … found in the round” (see Bank St Petersburg PJSC v Arkhangelsky[2020] EWHC Civ 408 ; [2020] 4 W.L.R. 55 at [70] per Sir Geoffrey Vos C).” “the origins of all conspiracies are concealed and it is usually quite impossible to establish when or where the initial agreement was made or when or where other conspirators were recruited. The very existence of the agreement can only be inferred from overt acts. Participation in a conspiracy is infinitely variable: it can be active or passive. If the majority shareholder and director of a company consents to the company being used for drug smuggling carried out in the company’s name by a fellow director and minority shareholder, he is guilty of conspiracy. Consent, that is agreement or adherence to the agreement, can be inferred if it is proved that he knew what was going on and the intention to participate in the furtherance of the criminal purpose is also established by his failure to stop the unlawful activity”. “The final point I make in relation to the Aeroplane Conspiracy, and it is true of much of the rest of it, is that this is an inferential case, as claims in conspiracy often are. There is an asymmetric relationship because by definition the claimant is not likely to have much by way of documents itself or direct evidence, quite often all it can do is raise inferences from the documents which it has. It is really, so far as the Aeroplane Conspiracy is concerned, when I say “more of the same”
“[t]he necessary ingredients of the conspiracy alleged are: (1) there must be a combination; (2) the combination must be to use unlawful means; (3) there must be an intention to injure a claimant by the use of those unlawful means; and (4) the use of the unlawful means must cause a claimant to suffer loss or damage as a result”
“[i]f an act is done deliberately and with knowledge of the consequences, I do not think that the actor can say that he did not ‘intend’ the consequences or that the act was not ‘aimed’ at the person who, it is known, will suffer them”. b) Where conspirators intentionally injure the claimant and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests: Lonrho Plc v Fayed[1992] 1 AC 448 , 465-466 ; see also OBG v Allan[2008] 1 AC 1 at [164-165] . c) Foresight that his unlawful conduct may or will probably damage the claimant cannot be equated with intention: OBG at [166]. iii) In some cases, there may be no specific intent but intention to injure results from the inevitability of loss: see Lord Nicholls at [167] in OBG v Allan, referring to cases where: “The defendant’s gain and the claimant’s loss are, to the defendant’s knowledge, inseparably linked. The defendant cannot obtain the one without bringing about the other. If the defendant goes ahead in such a case in order to obtain the gain he seeks, his state of mind will satisfy the mental ingredient of the unlawful interference tort.” iv) Concerted action (in the sense of active participation) consequent upon the combination or understanding: McGrath at [7.57]. v) Use of unlawful means as part of the concerted action. There is no requirement that the unlawful means themselves are independently actionable: Revenue andCustoms Commissioners v Total Network[2008] 1 AC 1174 at [104].” vi) Loss being caused to the target of the conspiracy.”
‘When the whole object of the defendants’ action is to capture the plaintiff’s business, their gain must be his loss. How stands the matter then? The difference disappears. The defendant’s success is the plaintiff’s extinction, and they cannot seek the one without ensuing the other.’ ‘When the whole object of the defendants’ action is to capture the plaintiff’s business, their gain must be his loss. How stands the matter then? The difference disappears. The defendant’s success is the plaintiff’s extinction, and they cannot seek the one without ensuing the other.’
“127 But these propositions do not, in my judgment, apply where the causative act is something which the party doing it believes he has a contractual right to do as against the relevant person, notwithstanding that the act would coincidentally cause that person detriment or loss. In this case the defendants envisaged that when FP exercised the power of sale Britel would lose its right to the development sublease. However, as I have explained, they were advised and believed that the exercise of the power of sale would overreach Britel’s rights to the development sublease. This was an inevitable result of the arrangements to which Britel agreed. The mere fact that Mr Tamimi or FP intended that result to occur does not mean that they had the intention to cause harm for the purposes of the tort of inducing breach of contract. All they intended to do was to produce a result which they believed, as a result of the contractual arrangements between ACP, FP and Britel, that they were entitled to produce.”
“If an act is done deliberately and with knowledge of the consequences, I do not think that the actor can say that he did not ‘intend’ the consequences or that the act was not ‘aimed’ at the person who, it is known, will suffer them”
“The task of the court is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice; …”