QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
Mr Graham Dunning QC and Mr James Collins (instructed by Allen & Overy)
for the First Defendant
Mr Michael Briggs QC, Mr Nicholas Lavender and Mr Toby Landau
(instructed by Lewis Silkin) for the Second Defendant
Mr Shane Doyle QC (instructed by Taylor Wessing) for the Third and Fourth Defendants
Hearing dates: 5 to 12 April 2006
Crown Copyright ©
The Hon Mr Justice Colman:
"We have known for some time, and appreciate, your reputation as a solicitor and solicitor-advocate of skill and experience, and know that you are someone with great experience in the strategy and management of the resolution of business disputes, and in mediation and litigation.
Our objective is that we should be in a position to have immediate access to you and your litigation and dispute resolution experience, your general counsel, so that you can give (or obtain) legal advice on any matter which we feel it is appropriate or necessary to have legal advice.
We will from time to time communicate information to you about particular activities relating to our business and/or our personal affairs even though we might not then need legal advice from you upon those activities. This is because we wish to keep you informed of all current developments relating to certain areas of our business and/or our personal affairs so that you are able to give or procure legal advice at short notice if this is needed.
The effect of your retainer has been, and continues to be, that all information given to you since the inception of the retainer by any of the companies or individuals identified above is confidential (while also of course being protected by privilege)."
i) an agreement as to a relatively complex structure of preliminary steps to be taken in respect of the temporary disposition of disputed assets, the standstill of pending proceedings, the withdrawal of the criminal proceeding and the parties facilitating the work of the arbitrator and the procedures to be adopted in the arbitration;
ii) an agreement that all outstanding disputes would be determined by B on the basis that he would be given extremely wide powers for that purpose and that the parties waived objections which they might otherwise have had to B acting or continuing to act in his capacity as sole arbitrator: see paragraphs 1.4, 1.5, 1.6, 1.8 and 1.9.
"We will write to you as soon as possible setting out our proposed directions, which will include a request that you make a determination as to whether or not you have jurisdiction in this matter, that you make a procedural order for the purpose of identifying clearly what the procedural rules in the arbitration are to be; that you make a procedural order identifying the factual and legal issues to be determined in the arbitration, subject to your prior determination (if any) that you do have jurisdiction; that you make a procedural order requiring the parties to the arbitration to file briefs on the merits of their cases exhibiting documents in support; to make such procedural orders as will be necessary for witness statements to be exchanged and for hearings at which those witnesses would give oral evidence both on jurisdiction and the merits."
"As soon as reasonably practicable the Claimant will commence proceedings in Switzerland and serve such proceedings on such parties as may be required under Swiss law."
"As you are fully aware our client is about to challenge your appointment as alleged arbitrator in Switzerland and your ongoing breach of your professional duties is about to become the subject matter of proceedings in England. Furthermore, the agreement pursuant to which you are purporting to be acting is void, represents a breach of trust by D and is arguably being used as a potential engine for fraud on the A Trust. In the circumstances, colluding with C and D to further the ends of that agreement is not a bona fide act and we will not be party to it by condescending to make submissions in a process which is discredited and invalid in any event."
"6.1 In the period from May 2004 until 26 July 2005 the Claimant was the victim of a fraudulent scheme carried on by the Second Defendant in which he was assisted directly or indirectly by the First and Second Defendants. Without discovery the Claimant cannot state whether the First Defendant was knowingly involved in the scheme. The aim of the Second Defendant's fraudulent scheme was to obtain total control of the A Group of companies and to exclude the Claimant from all rights and interests in it and A without paying any or any sufficient consideration. Significant elements of the said fraud were perpetrated in England.
6.2 The scheme was (1) secretly to purport to remove the Claimant and his children from membership of the class of discretionary objects of the A Trust then (2) use unlawful, illegitimate and fraudulent means to cause the Claimant to enter into the Agreement with the effect that (3) control and direction of the A Group companies and A Trust would pass from the Claimant to the Second Defendant and the ownership thereof would pass to the Third Defendant as trustee of the A Trust by (4) fraudulently leading the Claimant to believe that no attempts had been made to remove him from the said class (and that his interests in the A Trust and underlying A Group were therefore secure) while (5) ensuring that his (the Second Defendant's) interests were secure against enforcement of any award by keeping them or moving them into jurisdictions where any ward made under the Agreement would be unenforceable (eg. Liechtenstein).
6.3 The Claimant therefore contends that the Agreement is an instrument of, or is designed to facilitate, the Second Defendant's fraud and is therefore void and unenforceable as being contrary to public policy."
i) "A and C, each of whom was receiving independent legal advice, expressly agreed that their disputes should be resolved by B under arbitration which would be governed by Swiss law and have its seat in Switzerland.
ii) The natural consequence of this Agreement was that any issues as to the validity of the unusual provisions of the Arbitration clauses would fall to be resolved in Switzerland according to Swiss law.
iii) This consequence accords with principles of the law of international arbitration agreed under the New York Convention and recognised by this country by the 1996 Act.
iv) For the English court to restrain an arbitrator under an agreement providing for arbitration with its seat in a foreign jurisdiction to which the parties unquestionably agreed would infringe those principles.
v) Exceptional circumstances may, nonetheless, justify the English court in taking such action. Whether such circumstances exist will be a matter to be resolved by Colman J. and nothing in these reasons is intended to influence his decision in that regard.
vi) No special circumstances have been shown which justify taking such action on an interim basis, pending the hearing before Colman J."
"The First Defendant ("the Arbitrator") seeks an order that the action against him be stayed on the grounds that:
1. the proceedings concern an arbitration the seat of which, as provided for in clause 1.3 of the Arbitration Agreement, is Geneva, Switzerland and which is expressly governed by Swiss law;
2. the matters raised in the Particulars of Claim are all, or essentially, either (a) matters of substance that fall within the scope of the Arbitration Agreement and should accordingly be decided by the Arbitrator or (b) matters alleged to go to the jurisdiction of the Arbitrator which should be decided by the Arbitrator, at least in the first instance (subject to any review by the Swiss Courts);
3. accordingly, as they concern matters agreed to be subject to arbitration, the proceedings should be stayed under sections 2(2)(a) and 9 of the Arbitration Act 1996 and/or under the inherent jurisdiction of the Court;
4. insofar as, notwithstanding (1) to (3) above, any of the matters raised in the Particulars of Claim should be decided by any Court (as opposed to being decided by the Arbitrator), they should be decided either (a) by the Swiss Courts, being the Court(s) at the seat of the arbitration or (b) the Courts of the Bahamas, where certain proceedings are already pending between the parties and, accordingly, these proceedings should be stayed on the basis of forum non conveniens and/or lis alibi pendens;
5. further, in all the circumstances, the action against the Arbitrator should be stayed under the inherent jurisdiction of the Court because it is an abuse of process, vexatious and oppressive and/or an illegitimate attempt to invoke the jurisdiction of the English Court to disrupt a foreign arbitration."
i) A's failure to comply with his duty of full and frank disclosure upon the without notice application;
ii) the Court has no jurisdiction; and
iii) if, contrary to (ii), the Court does have jurisdiction, it should not exercise that jurisdiction on forum non conveniens grounds.
i) There was a failure to disclose that A had already commenced and discontinued a claim in his first English action for an order preventing B from acting as arbitrator.
ii) A did not disclose that he had already given to this court, and failed to abide by, an undertaking to bring proceedings in Switzerland to challenge B's orders.
iii) Nor did he disclose that he had repeatedly threatened to bring proceedings in Switzerland to have B removed as an arbitrator.
iv) He did not disclose that in his first English proceedings he had submitted that paragraph 1.9 of the arbitration agreement (waiver of the right to challenge an award) was invalid whereas his evidence upon the application to serve out was that it was valid.
v) He did not disclose that his case on the terms of the oral agreement of November 2001 advanced on this application was inconsistent with that put forward in the arbitration and in the first English proceedings.
vi) He failed to disclose that it was his own lawyers and not C's who proposed that the arbitration agreement be governed by Swiss law.
vii) He did not disclose paragraph 2.1(a) of the arbitration agreement which imposed an immediate standstill on new proceedings, including, arguably, the present action.
viii) A failed to disclose that in A's Bahamian action and in the Children's Action he and the other claimants had introduced matters relating to the arbitration, for example, the contention that B's sending documents of transfer to D was in breach of Swiss law and the claim for an inquiry as to which property was held on the terms of the A Trust or the B Trust and the C Trust which involved an investigation as to the effect of the release by B of the transfer documents on 1 June 2005 and had failed to disclose that in the Children's Action allegations were made that D acted in breach of trust or fiduciary duty entering into the arbitration agreement.
ix) There was failure to disclose the Building A action and the fact that there had previously been reliance by A on the validity of the arbitration agreement.
x) A failed to disclose that as regards the misrepresentations now relied on he had changed his case by comparison with what he had originally put forward in WGM's letter of 26 July 2005. In that letter it had been alleged that the misrepresentation made at a meeting in July 2004 that A and his children remained beneficiaries of the A Trust had been that of B on behalf of C and by C by his conduct, whereas in the Particulars of Claim it was now alleged that C himself and B had orally made the misrepresentation.
i) He can only be a necessary or proper party (CPR 6.20(3) in respect of the claims relating to the arbitration provided that this court assumes jurisdiction over B. However, given that the seat of the arbitration is Geneva, such jurisdiction should not be assumed.
ii) As to CPR 6.20(5)(a) contract made within the jurisdiction, the arbitration agreement was not made in London but the Bahamas when the final draft was signed by D on 30 July 2004. The oral agreement of November 2001 said to have been made at Claridges was never entered into either by C or by his daughter as C's agent. The agreement with C with respect to security for costs provided by A in the proceedings brought by Company E against Company M, having been made by email exchanges, had not been proved by A's evidence.
iii) As to CPR 6.20(5)(c), agreement governed by English law, this is relied on only with regard to the oral agreement of November 2001 and, even if, which is in issue, it was ever entered into, it was not impliedly subject to English law, having been made by two Israeli citizens both of whom were residents of the Bahamas, A, having until very recently been living there.
iv) As to the claim in tort, C's case is that it is incredible and that there is not a serious issue to be tried.
i) All the claims against C other than the arbitration claims fall within the scope of the arbitration agreement, including the claims under the November 2001 oral agreement and claims with regard to Company E.
ii) The seat of the arbitration was Geneva and the agreement was expressly governed by Swiss law. Therefore the only appropriate courts for determining the validity of that agreement were the Swiss courts which had supervisory jurisdiction over the arbitration, including a jurisdiction to consider whether an award or order or arbitration agreement should be set aside, whatever the arbitrator might have decided pursuant to kompetenz kompetenz.
iii) By paragraph 1.10 of the arbitration agreement the parties agreed to submit to "the jurisdiction of any court in which they or any of them are sued to enforce any determination or award". D has commenced proceedings in the Bahamas (the Building A action) to enforce orders made by the arbitrator in the arbitration in respect of delivery up of the documents stored in Building A.
i) Necessary or proper party. If B successfully challenges the court's jurisdiction, D cannot be a necessary or proper party.
ii) CPR 6.20(2) the claim for a mandatory injunction that D confirm in writing that A is authorised to instruct Firm A in relation to the Company M action has no prospect of success.
iii) CPR 6.20(5)(a) contract made within jurisdiction. The arbitration agreement was not made in England but in the Bahamas where D initialled the final draft. The claim as to agreement with regard to the Company M case has no prospect of success.
iv) CPR 6.20(6) breach of contract within the jurisdiction. The only claim is with regard to the agreement in respect of Company M as to which there is no prospect of success.
v) CPR 6.20(8) misrepresentations within the jurisdiction. While submitting that the case in deceit against D is not sufficiently pleaded, it is submitted that the representations that A and his children were beneficiaries under the A Trust allegedly made in a petition to the Preliminary Injunction Court in Rotterdam on 18 June 2004 and to the Court of First Instance of the District Law Court of Antwerp on 22 June 2004 were not made within the English jurisdiction. They were made before the date (6 July 2004) of the notices which C is said to have placed in a sealed envelope handed to D and long before the date (January 2005) on which the sealed envelope was opened which was the earliest date when the notices could have become effective. The repetition of those representations by Q on 11 October 2004 was made after the parties had entered into the arbitration agreement and so could not have induced it. Accordingly, the English court either has no jurisdiction over such claims against D or the claims are untenable.
Company E's Case
"If this argument were correct, the plaintiffs would be in a strong position as regards the discretion, for the dispute between the plantiffs and C could, as I have already suggested, most conveniently be dealt with as part of the action which is already on foot against D. This would avoid duplication of the evidence and argument and the risk of inconsistent decisions in two separate proceedings. There would also be important procedural advantages, since oral evidence and discovery adduced by one party would form part of the material in the proceedings against the other. I am, however, of the opinion that the plaintiff's objection is not well-founded. I quite agree that the presence of an arbitration clause in the contract sued upon is not a bar to the initial grant of leave under RSC O.11; for the defendant may choose not to rely on the clause, or (in cases falling within s.4(1) of the 1950 Act) the Court may decline to exercise its discretion in favour of granting a stay. Indeed, one not infrequently finds that a London arbitration clause is relied upon to found jurisdiction under RSC O.11 on the ground that the presence of the clause signifies an implied choice of English law. The position is, however, quite different where the defendants is entitled to a stay, as of right, under the 1975 Act, and makes it plain that this is a right which he intends to assert. Here, the upholding of the leave granted ex parte is an empty formality as it will immediately be followed by a successful application to stay. The difference between accepting jurisdiction over the claim and then renouncing it in favour of arbitration, and renouncing it directly, is one of form alone; in this instance there is no practical distinction between a summons to set aside a leave granted ex parte, and a summons to stay under the 1975 Act.
Accordingly, I think it legitimate to decide the present application by asking whether if it had taken the shape of an application to stay, C would have been entitled to succeed."
i) Should there be a stay of these proceedings against B?
ii) If C and D were allowed to be served and to become parties, could they successfully apply for a stay under Section 9 of the 1996 Act.
Should these Proceedings be stayed as against B?
i) The claim against B is primarily to enforce B's civil obligations which arise out of the contractual and fiduciary relationship of solicitor and client which is governed by English law.
ii) The arbitration exception in Article 1 of the Regulation applies to proceedings only if arbitration is the "principal object" of such proceedings, as indicated in The Ivan Zagubanski  1 Lloyd's Rep 106, approved by the Court of Appeal in Through Transport Mutual Insurance Association (Eurasia) Ltd v. New India Assurance Co Ltd  1 Lloyd's Rep 67.
iii) In order to identify for this purpose the principal object of the proceedings the court must consider the entire claim. It is not permitted to take an application or issue which arises within that claim and to ask whether, in isolation, that application or issue would appear to fall inside or outside Article 1. Reliance is placed on Owens Bank Ltd v. Bracco  ECR 1-117 at paragraphs 34-37.
iv) Further one looks exclusively at the claim in order to identify the principal object and not at the defence or the reply.
".. that the Convention does not apply to judgments determining whether an arbitration agreement is valid or not or, because it is invalid, ordering the parties not to continue the arbitration proceedings, or to proceedings and decisions concerning applications for the revocation, amendment, recognition and enforcement of arbitration awards."
"In the result Mr Justice Aikens, in our opinion correctly, held that the question in each case is whether the (or a) principal focus of the proceedings is arbitration. Another way of putting the same point is to ask the question posed by Mr Justice Rix in The Xing Su Hai, namely the essential subject matter of the claim concerns arbitration."
"I prefer the submission of Mr Boyd that there is such an inherent jurisdiction in the court. In particular, in order to protect itself in relation to attempts to abuse the process of the court, the court has undoubtedly very wide powers of staying proceedings. However, as Mr Boyd concedes, because here the area covered by that inherent jurisdiction has been the subject of detailed and precise Parliamentary intervention, the circumstances in which the court will grant a stay under its inherent jurisdiction in situations dealt with by the statutory provision, but where it could or would not do so in exercise of its statutory jurisdiction, will be rare. The jurisdiction is truly a residual one principally confined to dealing with cases not contemplated by the statutory provisions."
"The only other point I would make so far as the above approach is concerned is that it must not be overlooked that the Court has an inherent power to stay proceedings. I would in fact accept that on a proper construction of s.9 it can be said with force that a Court should be satisfied (a) that there is an arbitration clause and (b) that the subject of the action is within that clause, before the Court can grant a stay under that section. But a stay under the inherent jurisdiction may in fact be sensible in a situation where the Court cannot be sure of those matters but can see that good sense and litigation management makes it desirable for an arbitrator to consider the whole matter first. If for example, the Court thinks that it would take a trial with oral evidence to decide whether matters the subject of the action were actually within the scope of an arbitration clause, but that it was likely that on detailed inquiry the subject matter of the action will be found to be covered by the arbitration clause; and particularly if an arbitration was bound to take place in relation to some issues between the parties, and where having explored the details necessary to found jurisdiction, it would only be a short step to deciding the real issues, it will often be sensible for the Court not to try and resolve that question itself but leave it to the arbitrator."
" if a claimant is saying, on good grounds, that he never agreed to arbitrators deciding a particular dispute, then it seems rather unfair that he should be compelled to have that very dispute decided by the arbitrators whose very authority he is disputing".
" For as Lord Justice Rix observed more than once in his judgment (paras 160, 169), fraud is a thing apart. This is not a mere slogan. It reflects an old legal rule that that fraud unravels all: fraus omnia corrumpit. It also reflects the practical basis of commercial intercourse. Once fraud is proved "it vitiates judgments, contracts and all transactions whatsoever": Lazarus Estates Ltd v. Beasley  1 QB 702 at p712, per Lord Justice Denning. Parties entering into a commercial contract will no doubt recognise and accept the risk of errors and omissions in the preceding negotiations, even negligent errors and omissions. But each party will assume the honesty and good faith of the other; absent such assumption they would not deal. What is true of the principal is true of the agent, not least in a situation where, as here, the agent, if not the sire of the transaction, plays the role of a very active midwife. As Lord Justice Bramwell observed in Weir v. Bell (1878) 3 Exch D 238 and p245. I think that every person who authorises another to act for him in the making of any contract, undertakes for the absence of fraud in that person in the execution of the authority given, as much as he undertakes for its absence in himself when he make the contract."
" It is clear that the law, on public policy grounds, does not permit a contracting party to exclude liability for his own fraud in inducing the making of the contract "
i) The relief sought against B includes an injunction prohibiting him from proceeding with the arbitration and orders directing him to restore A to the position he would have been in if the arbitration had never commenced by returning to A documents which had been provided to B in his capacity as arbitrator/stakeholder. As such A seeks direct intervention by the court in the conduct of the arbitration, not merely by restraining the opposite party from proceeding with it, but by directly restraining the arbitrator himself from doing so and further by requiring him to restore A to his position before the arbitration commenced.
ii) The seat of the arbitration is expressly agreed to be in Switzerland, so, although Section 9 of the 1996 Act applies to it, none of sections 31, 32, 70, 72 or 73 do so. It is also expressly governed by Swiss law.
iii) The claims against B are brought many months after the arbitration has already commenced and after its settlement agreement dimension has been partly performed for the benefit of A, the criminal compliant in the Bahamas having already been withdrawn.
iv) The basis of the case impugning the enforceability of the arbitration agreement is not that A never entered into such an agreement, for it is quite obvious that he did so, or that the disputes between him and the opposite arbitrating parties, C and D, do not fall within the scope of the arbitrator's jurisdiction, but that the agreement should be rescinded and avoided ab initio on the grounds of fraudulent misrepresentation by the opposite arbitrating parties and non-fraudulent misrepresentation and/or duress by B and the opposite arbitrating parties. Superadded to this basis however is the claim that B himself has been instrumental in passing on misrepresentations and has therefore partly been the cause of the voidability of the agreement appointing him arbitrator. If the issue of voidability fell to be determined by him he would therefore be judge in his own cause. He would also have a financial interest in continuing to act as arbitrator and, therefore, in the continuation of the arbitration. There is also the allegation that from the outset he has acted in breach of the professional conduct rules for solicitors who accept appointments as arbitrators.
i) Not only was the meaning of the terms of the arbitration agreement to be determined in accordance with Swiss law but so also was the effect of the alleged misrepresentation and duress or breach of the fiduciary duty on the enforceability of the arbitration agreement and the question whether, if proved, such misrepresentation, duress or breach of duty avoided the previous orders of the arbitrator;
ii) Whether it should be the arbitrator or the court that decided in the first instance whether the arbitration agreement should be avoided ab initio or rescinded and, if the arbitrator, what right of recourse to the Swiss courts might be available to either party who wished to challenge the arbitrator's decision would be determined in accordance with Swiss law exclusively in the Swiss courts, Geneva being the place of the seat of the arbitration. For an agreement as to the seat of an arbitration is analogous to an exclusive jurisdiction clause. Any claim for a remedy going to the existence or scope of the arbitrator's jurisdiction or as to the validity of an existing interim or final award is agreed to be made only in the courts of the place designated as the seat of the arbitration. It is thus not merely, as was stated by Lord Phillips in the Court of Appeal judgment in this case, that the "natural consequence" of the arbitration agreement was that any issue as to the validity of the arbitration provisions would fall to be resolved in Switzerland according to Swiss law, but that it would be a breach of agreement to invite the courts of any other place to resolve such an issue or at least to order a remedy founded on such resolution. This analysis reflects international arbitration practice over the entire period since the coming into effect of the New York Convention. The provisions of Article V of that Convention rest on that basis. In Naviera Amazonica Peruana v. Compania Internacional de Sequros del Peru  1 Lloyd's Rep 116 Kerr LJ. observed at page 119:
i) The Kompetenz-Kompetenz principle is applied in Swiss arbitration law to the effect that the arbitrator is under a duty to determine any challenge to his jurisdiction in a separate award. He cannot resign of his own volition.
ii) The fact that he is a witness as to the issue of the voidability of the arbitration award or is alleged to be biased is irrelevant: he is not thereby disabled from deciding those matters. He is as well able to recuse himself as any judge hearing such an application.
iii) If a party is dissatisfied with the arbitrator's conclusion on jurisdiction, his award may be challenged in the Swiss Supreme Court under Article 190 of the Swiss Private International Law Act. In such a hearing the Supreme Court will have full power to review whether the arbitrator has correctly asserted jurisdiction and whether he has correctly considered and assessed the alleged causes of nullity or voidability of the arbitration agreement.
iv) It was originally open to A to apply to the Cantonal Court of Geneva without delay challenging B's continuing to act as arbitrator on grounds of lack of impartiality under Article 180(3) of the Swiss Private International Law Act.
v) The justification for the arbitrator having jurisdiction to determine these matters is that it is not the validity of the arbitration agreement which enables the arbitrator to determine his own jurisdiction but its existence, as per Article 186(3) of the Swiss Private International Law Act, which reflects section 16(1) of the 1985 Uncitral Model Law.
"(1) The court may, on the application of a party to arbitral proceedings (upon notice to the other parties), determine any question as to the substantive jurisdiction of the tribunal.
A party may lose the right to object (see section 73)
(2) An application under this section shall not be considered unless
(a) it is made with the agreement in writing of all the other parties to the proceedings or
(b) it is made with the permission of the tribunal and the court is satisfied
(i) that the determination of the question is likely to produce substantial savings in costs,
(ii) that the application was made without delay, and
(iii) that there is good reason why the matter should be decided by the court."
"The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement."
Should Service on C be set aside?
i) Before it could be satisfied that the agreement to arbitrate had ceased to be enforceable a number of substantial factual issues would have to be resolved, those issues being factually related to the substantive issues in the arbitration. It would probably be necessary for the main participants in the agreement to give oral evidence.
ii) Whether the conduct of the parties as found by the court led to the conclusion that the agreement had wholly or partly ceased to be enforceable would have to be determined as a matter of Swiss law because that was the proper law of the agreement.
iii) In determining what effect the conduct of the parties had on the enforceability of the agreement the court would have to determine whether the effect was that the arbitration provisions of the agreement remained enforceable, even though the settlement structure provisions had been rendered unenforceable, to the effect that B still retained substantive jurisdiction to determine the substantial issues and/or had Kompetenz-Kompetenz jurisdiction, in other words, how far the principles of separability applied in this case. These would also be matters of Swiss law.
iv) The arbitration was continuing in Geneva on the basis that B had jurisdiction at least to determine his own jurisdiction. Any decision by this court upon the issue to be tried that the arbitration agreement was unenforceable would therefore cause serious procedural dislocation.
v) Geneva was the seat of the ongoing arbitration and the Geneva or Swiss courts were therefore agreed by the parties to be the court having sole supervisory jurisdiction over the arbitration. Resort to the English court for the purpose of rescinding the arbitration agreement and discharging the arbitrator was therefore at least on the face of the agreement in breach of the agreement itself.
vi) The commencement of the present proceedings was, on the face of it, in breach of the standstill agreement in clause B2.1 of the agreement.
Should Service on D be set aside?
Should Service on Company E be set aside?
Injunction of 30 September 2005 as extended
i) The arbitration claims against B will be stayed.
ii) The personal claims against B will be temporarily stayed with liberty to apply after B has made a final award or has otherwise become functus officio.
iii) The orders giving leave to serve C, D and Company E outside the jurisdiction will be set aside as will the injunction of 30 September as extended by the Order of Morison J. on 21 October 2005.