BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
Sitting as a Deputy Judge of the High Court
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COSIMO BORRELLI (AS JOINT LIQUIDATOR OF CERTAIN FUNDS) AND THE CLAIMANTS LISTED IN ANNEX 1 |
Claimants |
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- and – |
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(1) MUTAZ OTAIBI (2) HUSSAM OTAIBI (3) JAMES WILCOX AND THE DEFENDANTS LISTED IN ANNEX 2 |
Defendants |
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Mr Adam Rushworth and Mr Tom Foxton (instructed by Allen Overy Shearman Sterling LLP) for the Twenty Third Defendant
Hearing dates: 30 April, 1 May 2024
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Crown Copyright ©
MR SALTER KC:
(A) Introduction
1. There are two applications before the Court:
1.1 An application issued on 10 May 2023 by the twenty-third defendant ("FFISA"), seeking (i) to set aside the Order made by Knowles J on 10 February 2023 granting permission to serve the Amended Claim Form and Particulars of Claim on FFISA out of the jurisdiction, and (ii) to stay or dismiss the proceedings against FFISA ("the Set Aside Application"); and
1.2 An application issued on 3 April 2024 by the claimants, seeking permission for certain re-amendments to the Claim Form and amendments to the Particulars of Claim ("the Amendment Application").
(B) The claims in outline
4.1 Mutaz and Hussam Otaibi, the first and second defendants, and James Wilcox, the third defendant (together "the Floreat Principals") control and beneficially own the Floreat Group, of which most of the other defendants are corporate members.
4.2 The Floreat Group operate as private financial investment management and advisory service providers. The Floreat Principals acted at various points as directors of the Funds and at various points various members of the Floreat Group acted as investment managers and/or investment advisers to the Funds.
4.3 The Floreat Principals and/or the members of the Floreat Group (acting at the direction of the Floreat Principals) used their positions to "milk" the Funds of their assets. They did this by causing or influencing the Funds to enter into various transactions which are said to have been disadvantageous to the Funds but advantageous to the Floreat Principals and/or to the Floreat Group and/or by causing or influencing the Funds to pay certain excessive or otherwise improper fees and other amounts.
6.1 The fourth claimant, GFIF makes claims in relation to investments described in the draft Amended Particulars of Claim as "the E-Notes".
6.2 GFIF also makes claims in relation to loan transactions involving Reading Football Club Limited and associated legal proceedings.
6.3 The fifth claimant, Real Assets (RA) Global Opportunity Fund 1 Limited ("RAGOF") makes claims in relation to transactions in connection with a property known as "Springs Farm".
6.4 The sixth claimant, Principal Investing Fund 1 Limited ("PIF"), makes claims in relation to dealings in relation to what is referred to in the draft Amended Particulars of Claim as the "Shanti Artwork".
6.5 GFIF, RAGOF, PIF, and the seventh claimant, Long View II Limited ("Long View") each make claims in respect of what are described in the draft Amended Particulars of Claim as "unauthorised, excessive, duplicative or improper fees".
7.1 GFIF is a close-ended investment company incorporated in the Cayman Islands on 13 July 2015. The first defendant, Mutaz Otaibi, was a director of GFIF from its incorporation until 18 April 2018, and thereafter continued from time to time to act as a de facto director of GFIF. Another of GFIF's three directors was David Whitworth, who is described as "a director who frequently acts alongside and for the Floreat Principals" and who "has been a director of RAGOF [and] PIF and has also been a director of [the fourth defendant, Floreat Real Asset Investment Management Limited] (RAGOF's IM) and of [the eighth defendant, LV II Investment Management Limited], (Long View's IM)"[1].
7.2 The fifth defendant, Floreat Investment Management Limited, acted as GFIF's investment manager from 20 August 2015 until 21 December 2018, when it was replaced by the sixth defendant, Floreat Global Fixed Income Management Limited. Mutaz Otaibi is the sole beneficial shareholder of both of these companies. Floreat Capital Markets Limited ("FCML"), the tenth defendant, and Floreat Merchant Banking Limited ("FMBL"), the eleventh defendant - both also companies in the Floreat Group - successively acted as investment advisers to GFIF's investment managers.
7.3 In about May 2016, FCML issued a single page prospectus for what it described as an "Investment Opportunity" in asset-backed securities ("the Aviation Notes"). The concept at that stage was of a sharia-compliant USD 150m issue with a target coupon of 7% and a target IRR of 9-10%, the cash-flow for which was to come from a portfolio of five aircraft leases, secured on "aircraft and underlying leases". "Seed Investment" was to come from the twelfth defendant, Floreat Wealth Management Limited. The intended structure of the transaction was designed to be highly profitable for the Floreat Group.
7.4 By July 2016, FCML had not managed to persuade any investors to agree to subscribe for the Aviation Notes, but a deadline was approaching for the payment of purchase deposits to secure the aircraft. The board of GFIF, under the control of Mutaz Otaibi, initially agreed to lend up to USD 2m, later increased to USD 5m, to the fifth defendant for that purpose.
7.5 On 3 August 2016, FFISA was incorporated as a public limited company in Luxembourg as a Securitisation Vehicle ("an SV"), pursuant to the Luxembourg law of 22 March 2004 on securitisation. The Luxembourg securitisation law allows the creation of segregated compartments within an SV, each representing a distinct part of the assets and liabilities of the SV. Each compartment is treated in practice as a separate entity, and its assets are ring-fenced by law so as to be available only to the investors and creditors of the particular compartment. The plan was for FFISA to be the issuer of the Aviation Notes, in two series, Series A and Series B, each ascribed to a separate compartment.
7.6 On incorporation, FFISA had five directors, three of whom were employees of FFISA's corporate service provider, Deutsche Bank Luxembourg SA. The other two were Mutaz Otaibi and David Whitworth. As I have already mentioned, both at the time were also directors of GFIF.
7.7 Even by mid-November 2016, no investors had yet committed to subscribe for the Aviation Notes. There was therefore no money available to buy the aircraft. The tenth defendant (as investment adviser to GFIF's investment manager) therefore advised, and Mutaz Otaibi and David Whitworth as directors of GFIF agreed, that GFIF should provide an equity bridge loan of USD 44m ("the Bridge Loan") to the eighteenth defendant, FFI Aviation Portfolio Limited ("FFIAP") to assist with the proposed purchase of the aircraft.
7.8 This agreement was recorded in a loan agreement dated 14 November 2016 ("the Bridge Loan Agreement") governed by English law and containing a clause conferring exclusive jurisdiction on the courts of England and Wales, as follows:
14. APPLICABLE LAW AND PLACE OF JURISDICTION/PAYMENTS14.1 This agreement and any non-contractual obligations arising out of or in connection with it is governed by the laws of England and Wales.14.2 The Parties agree that the English courts will have exclusive jurisdiction to settle any dispute including a dispute relating to non-contractual obligations arising out of or in connection with this agreement and for these purposes each Party submits to the jurisdiction of those courts.7.9 In fact, GFIF, did not itself have sufficient cash funds to make the loan, and so had to borrow USD 39m from Mahi Lending Services Limited ("Mahi"), a subsidiary of PIF. In connection with that loan, Mahi paid a transaction fee of USD 195,002 to the seventh defendant, Floreat Principal Investing Limited, Mahi's Investment Adviser.
7.10 Eventually, it was decided by the Floreat Principals that GFIF (with the assistance of further funding from RAGOF) should itself acquire the Series B Aviation Notes. On 19 December 2016 RAGOF invested USD 30m into GFIF Series 6 Shares, those funds being expressly stated to be for the purchase of Aviation Notes.
7.11 On 19 December 2016, GFIF entered into 4 written Subscription Agreements with FFISA relating to the Series B Aviation Notes ("the Subscription Agreements"). Under each of the Subscription Agreements, FFISA agreed to issue the Aviation Notes on 21 December 2016 and GFIF agreed to "subscribe to the Notes and to pay the subscription price".
7.11.1 Under the first of these, GFIF agreed to pay the subscription price of USD 1.2m by transferring to FFISA its rights in respect of the Bridge Loan.7.11.2 Under the second, GFIF agreed to "submit its subscription to the Notes into the market" and to pay the subscription price of USD 30m to the account of the Settlement Agent for the Subscribing Bank/Custodian, Banque Pictet & Cie SA, Geneva.7.11.3 Under the third, GFIF similarly agreed to "submit its subscription to the Notes into the market" and to pay the subscription price of USD 5.8m.7.11.4 Under the fourth, GFIF again agreed to "submit its subscription to the Notes into the market" and to pay the subscription price of USD 44m.It was common ground between the parties that the consideration amounts stated in the first and fourth of the Subscription Agreements have been transposed, and that the USD 44m subscription price (not the price of USD 1.2m) was paid by transfer of GFIF's rights in relation to the Bridge Loan.7.12 Each of the Subscription Agreements was signed on behalf of FFISA and on behalf of GFIF by the same director, David Whitworth. Each Subscription Agreement contained an "Entire Agreement Clause" which provided that:
The [Terms and Conditions of the Series B Aviation Notes, as set out in the Offering Circular] form part of this Agreement and shall have the same force and effect as if expressly set out in the body of this Agreement, and any reference to this Agreement shall include the Conditions.7.13 Each Subscription Agreement also contained an "Applicable Law and Jurisdiction Clause" as follows:
This Agreement and all matters arising from or connected with it are governed by, and shall be construed in accordance with, Luxembourg law and shall be subject to the exclusive jurisdiction of the courts of the city of Luxembourg, Grand-Duchy of Luxembourg.7.14 On 21 December 2016, FFISA issued USD 132m of Aviation Notes in two series: (1) USD 51m of Series A Aviation Notes; and (2) USD 81m of Series B Aviation Notes. Each series was, on issue, represented by a Temporary Global Note held on behalf of Euroclear. The Notes were listed on the Euro MTN market of the Luxembourg Stock Exchange on 22 December 2016, under an Offering Memorandum of that same date.
7.15 Pursuant to the Subscription Agreements, GFIF subscribed for the whole USD 81m of the Series B Aviation Notes, using at least USD 69m of funding indirectly provided by RAGOF and PIF. GFIF's rights and obligations under the Bridge Loan Agreement were transferred to FFISA with effect from 21 December 2016 under a Transfer Certificate dated 19 December 2016, which started that it "and any non-contractual obligations arising out of it are governed by English Law".
7.16 The Terms and Conditions of the Series B Aviation Notes ("the Conditions") contained governing law and jurisdiction provisions, as follows:
GOVERNING LAW AND JURISDICTION16.1 Governing LawThe Floreat Aviation Notes Series B are governed by, and shall be construed in accordance with, Luxembourg law.16.2 JurisdictionThe Luxembourg district courts are to have jurisdiction to settle any disputes which may arise out of or in connection with the Floreat Aviation Notes Series B and accordingly any legal action or proceedings arising out of or in connection with the Floreat Aviation Notes Series B (Proceedings) may be brought in such courts. Each of the Issuer and the Noteholders irrevocably submit to the jurisdiction of the Luxembourg district courts and waive any objection to Proceedings in such courts on the ground of venue or on the ground that the Proceedings have been brought in an inconvenient forum. These submissions are made for the benefit of the Issuer only and shall not affect the Issuer's right to take Proceedings in any other court of competent jurisdiction nor shall the taking of Proceedings by the Issuer in one or more jurisdictions preclude the taking of Proceedings by the Issuer in any other jurisdiction (whether concurrently or not).7.17 IR Relations Ltd, the twenty-fourth defendant, acted (until 4 February 2019) as Liaison Manager, and Floreat Aviation Services Limited, the twenty fifth defendant acted as originator, in connection with this issue. Each received significant upfront, placement and continuing fees, amounting to several million USD. Mutaz Otaibi ultimately stood to benefit and did in fact benefit personally from about half of those fees. The significant benefits to be derived by Mutaz Otaibi, and/or the other Floreat Principals and/or the Floreat Group by reason of the issue of the Aviation Notes and/or GFIF's subscription for the Series B Aviation Notes were not properly disclosed to the independent directors of GFIF.
7.18 Following GFIF's subscription, FFISA used the proceeds from the sale of the Aviation Notes to purchase notes and shares in the eighteenth defendant, FFIAP, the twenty first defendant, FFI Aviation MSN 1518 Ltd ("FFIA 1518"), and the twenty second defendant, FFI Aviation MSN 1310 LLC ("FFIA 1310"). FFIAP, in turn, used the proceeds from sale of its shares in FFISA to acquire shares and inject capital into the twentieth defendant, FFI Aviation MSN 1407 (Guernsey) Limited, FFIA 1518 and FFIA 1310 which, together, purchased three aircraft for a total of approximately USD 270m. Those aircraft were then eventually leased to Hawaiian Airlines, Virgin Australia, and Asiana Airlines. Each of these lessees had a "questionable" credit rating.
7.19 In addition to the money from the sale of the Aviation Notes, the purchase of the aircraft was partly funded by a loan facility from Norddeutsche Landesbank, which was secured on the aircraft and on the proceeds of the eventual leases of those aircraft.
7.20 That, and other features of the transaction (which, as finally carried out, did not in several respects correspond with the description in the May 2016 single page prospectus), meant that GFIF's rights as ultimate account holder of the Series B Aviation Notes were unsecured and deeply and structurally subordinated.
(C) The Set-Aside Application
(C.1) The jurisdiction agreements
(C.1.1) The arguments of the parties
11.1 GFIF's claim against FFISA in dishonest assistance is made on the basis that FFISA's assistance was by way of issuing the Series B Aviation Notes to which GFIF subscribed, and GFIF's claim in knowing receipt is made on the basis that FFISA, as issuer of the Series B Aviation Notes, received the transfer of GFIF's rights under the Bridge Loan Agreement and the other cash funds from GFIF's subscription.
11.2 Those claims are plainly "matters arising from or connected with" the Subscription Agreements, which expressly confer exclusive jurisdiction on the courts of the city of Luxembourg.
11.3 To the extent (if any) that the claims made against FFISA do not fall within the jurisdiction clauses in the Subscription Agreements themselves, they are in any event "disputes which may arise out of or in connection with the Floreat Aviation Notes Series B" within the meaning of the jurisdiction clause in the Conditions (incorporated by reference into the Subscription Agreements), which confers jurisdiction (which, by virtue of Article 3(b) of the Hague Convention 2005, is implicitly exclusive[2]) on the Luxembourg district courts.
11.4 Each of these clauses is an "exclusive choice of court agreement" within the definition on Article 3 of the Hague Convention 2005, which is given the force of law in the United Kingdom by the Civil Jurisdiction and Judgements Act 1982 s 3D and Scheds 3F and 3FA[3].
11.5 In the circumstances, Article 6 of the Hague Convention 2005 requires the English court to suspend or dismiss the proceedings against FFISA. The English court simply has no discretion to allow the proceedings against FFISA in England to continue.
14.1 Since Article 3(a) applies only to disputes "which have arisen or may arise in connection with a particular legal relationship", the court in considering the scope of the jurisdiction clause must adopt a two stage process: deciding first what the relevant "particular legal relationship" is and only then, second, which disputes the clause applies to.
14.2 Mr Chapman could cite no English authority directly in support of this approach to the Hague Convention 2005. He relied, however, upon the approach described by Jacobs J in Etihad Airways PJSC v Flother[4] to what Mr Chapman described as the "closely analogous provision" under Article 25 of the Brussels Recast Regulation[5].
.. the test [under Article 25] requires identification, by reference to the facts of the case as a whole, of the legal relationship between the parties in connection with which the jurisdiction agreement was concluded. It then requires consideration of whether the dispute originates from that legal relationship or a different one ..14.3 As to the correct approach to the first of these stages, Mr Chapman relied in particular upon the following further passage from the judgment of Jacobs J:
[123] The leading case on the concept of disputes arising "in connection with a particular legal relationship" is the decision of the European Court of Justice in Powell Duffryn[6]. The court explained at para 31 that:"This requirement aims to limit the effect of an agreement conferring jurisdiction to disputes originating from the legal relationship in connection with which the agreement was concluded. It seeks to prevent a party from being surprised by the referral to a specified court of all disputes which arise in the relationships which it has with the other party and which may originate in relationships other than that in connection with which the agreement conferring jurisdiction was concluded."[124] I consider .. that, applying Powell Duffryn, it is important to identify the legal relationship in connection with which the agreement conferring jurisdiction was concluded, and then to ask whether the dispute has originated in a different relationship; i e a relationship other than that in connection with which the agreement conferring jurisdiction was concluded. These questions should be asked bearing in mind that the purpose of the relevant words in article 25 is to is to avoid a party being taken by surprise by the referral of the dispute to a contractually agreed court, because the dispute had originated in a different legal relationship.[125] I agree .. that the relevant question is not simply whether a party would be taken by surprise: this is not the legal test. However, that question serves as a very useful cross-check on what I consider to be the relevant legal questions. If it is clear that a party would not be taken by surprise by the referral of the dispute, then it is very likely indeed that the dispute has not originated in a relationship other than that in connection with which the agreement was concluded. It is therefore very likely that application of the legal test, and the answer to the question whether a party would be taken by surprise, will lead to the same result.14.4 The "particular legal relationship" that gives rise to the dispute between the claimants and FFISA in the present action is not the narrow relationship created by the Subscription Agreements.
14.4.1 By far the more consequential legal relationship for the purposes of this action is that between the claimants and the Floreat Group and between the claimants and FFISA as an entity in the Floreat Group, controlled and directed by Mutaz Otaibi and David Whitworth, whose knowledge is attributable to FFISA. FFISA is merely an accessory to those primary wrongs.14.4.2 The Aviation Notes transactions involved many defendants other than FFISA, and involved PIF and RAGOF as well as GFIF in plugging the funding gap. As Mutaz Otaibi himself acknowledged in a recorded conversation with other Floreat associates on 26 July 2018:.. we got all three of the funds involved in a note that no one knew how to raise money for it, and there was no guarantee it was going to work to launch it ..[7]14.4.3 None of these other participants in the overall Aviation Notes transaction, whether on the defendants' side or the claimants' side, was a party to these jurisdiction clauses. This illustrates that the relationship created by the Subscription Agreements was merely a part of, and ancillary to, the wider relationship between the Funds and the Floreat Group, the abuse of which is complained of in this action.14.4.4 Applying the "litmus test" of surprise, FFISA cannot plausibly complain that it has been taken by surprise by the referral of the present claims against it to this jurisdiction. On the contrary, for the reasons pleaded in paragraph 34 of the draft Amended Particulars of Claim, the claims in these actions are predominantly governed by English law. The relationships in the abuse of which FFISA is said to have dishonestly assisted were governed by English law, and the persons whose knowledge is relied on as showing FFISA's dishonesty are domiciled in England. Indeed, all three of the Floreat Principals are domiciled in England, and a significant number of the defendant companies are incorporated in England. All of the defendants other than FFISA are either subject to the jurisdiction of the English court or have submitted to this jurisdiction. All of FFISA's co-conspirators will therefore be sued here.14.4.5 As to the second stage of the enquiry, the relevant jurisdiction provisions fall to be construed in accordance with Luxembourg law. The expert witnesses are agreed that:The fundamental rule of interpretation of contracts under Luxembourg law is that contracts should be interpreted by assessing the actual common intention of the parties ..[I]f the parties are able to demonstrate that the actual common intention of the parties differs from the wording of the contract, actual common intention of the parties prevails ..The assessment of the common intention of the parties is an issue of fact .. Lower courts are thus free to rely upon both on intrinsic and extrinsic evidence to assess the actual common intention of the parties and there is no hierarchy between the two. Intrinsic evidence comprises the various contractual documents that the parties have agreed upon. Extrinsic evidence includes correspondence exchanged by the parties prior to or after the conclusion of the contract, acts of performance of the contract suggesting a certain understanding of the obligations of the parties..In the absence of extrinsic evidence demonstrating that the actual common intention of the parties might have been different from the wording of the contract, the enquiry will focus on intrinsic evidence of the actual common intention parties .. [8]14.4.6 Contrary to the views of Professor Cuniberti, however, Luxembourg law also provides guidance in cases like the present through the theory of contractual ensemble "where several contracts between different parties constitute a complex and individual contractual ensemble"[9]. The theory of indivisibility rests on "an interpretation of the common will of the parties" meaning that, where the Luxembourg courts deem the dispute prima facie subject to a jurisdiction clause is an indivisible part of a larger dispute, they can construe the clause narrowly by reference to the parties' common will[10].14.5 In the present case, it is notable that FFISA has agreed to an asymmetric jurisdiction clause in the Conditions (which, in any event, provides for different Luxembourg courts to the clause in the Subscription Agreements) and to an exclusive English jurisdiction clause under the Bridge Loan Agreement. The claims against the other defendants, which are both logically anterior to the claims against FFISA and indivisible from those claims, can only be tried in England.
14.6 Against that background, the actual common intention of the parties should be taken to favour a narrow interpretation, tying the applicable legal relationship to the Subscription Agreements alone. Neither FFISA nor GFIF would have intended that the specific claims against FFISA in these proceedings should be the subject of a separate trial in Luxembourg, leading to fragmentation and the possibility of inconsistent judgements.
14.7 Applying the relevant principles of interpretation under Luxembourg law, the court should therefore find that the subjective common intention of the parties was not to require that the sort of claims made in the present action should be tried only in the courts of Luxembourg.
15.1 The wording of Article 3(a) of the Convention, which defines exclusive jurisdiction clauses as those which specify the courts of one Contracting State "to the exclusion of the jurisdiction of any other courts".
15.2 Paragraph 32 of the Explanatory Report on the Convention by Trevor Hartley and Masato Dogauchi, which states:
An asymmetric choice of court agreement (a choice of court agreement under which one party may bring proceedings exclusively in the designated court, that the other party may sue in other courts as well) is not regarded as exclusive for the purposes of the Convention.15.3 The Minutes of the Twentieth Session of the Hague Conference on Private International Law 2005, which record the rejection and withdrawal of a Swiss proposal to include asymmetric jurisdiction agreements within the scope of the Convention, which records:
.. The view of the Commission .. that asymmetric agreements were not covered by the Convention and that the Convention was not designed for clauses of this sort ..15.4 The willingness of the English Court of Appeal, by reference to this material, to proceed on the basis (although without deciding) that:
.. the Hague 2005 Convention should probably be interpreted as not applying to asymmetric jurisdiction clauses ..[11]
(C.1.2) Analysis
.. To determine whether the proceedings are subject to such an agreement [within the Convention], the court must interpret it. Under Article 3(a) of the Convention, the agreement applies to disputes "which have arisen or may arise in connection with a particular legal relationship". In interpreting the agreement, the court must decide what that relationship is, and which dispute the agreement applies to ..
However, there is nothing in the Convention which prescribes how such a jurisdiction provision in a contract should be interpreted, which therefore leaves the matter to the governing or applicable law of the contract[21]. Unlike the position under the Brussels Regulation Recast, there is no jurisdictional fall back in the Hague Convention 2005 to deal with a case where the clause on its true interpretation under its governing or applicable law covers the claims in question but nevertheless falls outside the Convention.
(C.2) Non-disclosure
45.1 The Joint Liquidators were aware of the existence of the Subscription Agreements for at least four months before the application to Knowles J. Their solicitors, Wilkie Farr, referred to the Subscription Agreements in a letter dated 30 September 2022.
45.2 The Subscription Agreements were exhibited to the sixth witness statement of Mr Mutaz Otaibi dated 23 November 2022, which was filed in the Cayman winding up proceedings. As is confirmed in paragraph 239 of Mr Burrell's fourth witness statement, the Joint Liquidators had copies of the Subscription Agreements among their papers.
45.3 Mr Burrell did not exhibit the Subscription Agreements to his first witness statement, and the existence of the jurisdiction provisions on which the Set Aside Application has been based was not mentioned to Knowles J.
45.4 Knowles J was also not told that the Particulars of Claim advanced claims that were not included in the Amended Claim Form, and that the limitation period for those claims had expired since the Amended Claim Form was filed.
(D) Permission to amend
.. Statements of case must be concise. They must plead only material facts, meaning those necessary for the purpose of formulating a cause of action or defence, and not background facts or evidence. Still less should they contain arguments, reasons or rhetoric ..
The practice of simply telling the story and/or of including long quotations from the documentary evidence and/or of including prejudicial commentary, sometimes adopted in the drafting of statements of case in arbitrations, has no place in litigation in the Commercial Court. As is stated in paragraph C1.1 of the Commercial Court Guide:
.. Special care should be taken to set out (with proper particulars) only those factual allegations which are necessary to establish the cause of action, defence, or point of reply being advanced .. to enable the other party to know what case it has to meet. Evidence should not be included, and a general factual narrative is neither required nor helpful ..[29]
(E) Disposition
(1) COSIMO BORRELLI
(AS JOINT OFFICIAL LIQUIDATOR OF GLOBAL FIXED INCOME FUND I LIMITED ("GFIF") (IN OFFICIAL LIQUIDATION), JOINT LIQUIDATOR OF REAL ASSETS (RA) GLOBAL OPPORTUNITY FUND I LTD. ("RAGOF") (IN LIQUIDATION), JOINT OFFICIAL LIQUIDATOR OF PRINCIPAL INVESTING FUND I LIMITED ("PIF") (IN OFFICIAL LIQUIDATION), AND JOINT OFFICIAL LIQUIDATOR OF LONG VIEW II LIMITED ("LONG VIEW") (IN OFFICIAL LIQUIDATION)
(2) COLIN WILSON (AS JOINT LIQUIDATOR OF RAGOF)
(3) MITCHELL MANSFIELD (AS JOINT OFFICIAL LIQUIDATOR OF PIF, GFIF, AND LONG VIEW)
(4) GLOBAL FIXED INCOME FUND I LIMITED (IN OFFICIAL LIQUIDATION)
(5) REAL ASSETS (RA) GLOBAL OPPORTUNITY FUND I LTD (IN LIQUIDATION)
(6) PRINCIPAL INVESTING FUND I LIMITED (IN OFFICIAL LIQUIDATION)
(7) LONG VIEW II LIMITED (IN OFFICIAL LIQUIDATION)
(8) SPRINGS FARM LIMITED
(9) SPRINGS FARM SERVICES LIMITED
(10) SHANTI
(11) MAHI LENDING SERVICES LIMITED
(12) CHESHAM HOLDCO
(13) 1 CHESHAM CLOSE LIMITED
(14) 3 CHESHAM CLOSE LIMITED
(15) 4 CHESHAM CLOSE LIMITED
(16) RAGOF HEUSENTSTAMM S.A.R.L.
(17) WANDERERS HOLDCO LIMITED
(18) SILVERTOWN LIMITED
(19) CASTLETOWN LENDING LIMITED
(20) MREF IIII HAYES LTD
(21) RAGOF 33 GROSVENOR STREET LIMITED
(22) RAGOF COLMORE ROW LIMITED
(23) RAGOF SPENCER HOUSE LIMITED
(1) MUTAZ OTAIBI
(2) HUSSAM OTAIBI
(3) JAMES WILCOX
(4) FLOREAT REAL ASSET INVESTMENT MANAGEMENT LTD
(5) FLOREAT INVESTMENT MANAGEMENT LIMITED
(6) FLOREAT GLOBAL FIXED INCOME MANAGEMENT LIMITED
(7) FLOREAT PRINCIPAL INVESTING LIMITED
(8) LV II INVESTMENT MANAGEMENT LIMITED
(9) FLOREAT REAL ESTATE LIMITED (UK)
(10) FLOREAT CAPITAL MARKETS LIMITED (IN LIQUIDATION)
(11) FLOREAT MERCHANT BANKING LIMITED
(12) FLOREAT WEALTH MANAGEMENT LIMITED
(13) FLOREAT HOLDING LIMITED
(14) FLOREAT REAL ESTATE LIMITED (JERSEY)
(15) FLOREAT PRINCIPAL INVESTMENT MANAGEMENT LIMITED
(16) STUDIO 51 NORTH LIMITED
(17) SPRINGS EQUESTRIAN ESTATE LIMITED
(18) FFI AVIATION PORTFOLIO LIMITED
(19) TRUSTEE OR TRUSTEES (IDENTITY OR IDENTITIES UNKNOWN) OF THE FLOREAT PURPOSE TRUST
(20) FFI AVIATION MSN 1407 (GUERNSEY) LIMITED
(21) FFI AVIATION MSN 1518 LIMITED
(22) FLOREAT FFI AVIATION MSN 1310 LLC
(23) FLOREAT FIXED INCOME SA
(24) IR RELATIONS LTD.
(25) FLOREAT AVIATION SERVICES LIMITED
(26) BENJAMIN CHURCHILL
(27) OUMAR DIALLO
(28) ZAKI MOHAMMED NUSEIBEH
Note 1 Burrell 4, para 23. See also the Amended Particulars of Claim paras 15B and 93.7A [Back] Note 2 Mr Rushworth also relied upon the decision of Butcher J in Deutsche Trustee Company Ltd v Bangkok Land (Cayman Islands) Ltd [2018] EWHC 2052 (Comm) at [15] to [20], determining that a materially similar clause was exclusive. [Back] Note 3 Inserted by the Private International Law (Implementation of Agreements) Act 2020. Amended by The Civil Jurisdiction and Judgments (2005 Hague Convention and 2007 Hague Convention) (Amendment) Regulations 2022 (SI 2022 No 77). [Back] Note 4 [2019] EWHC 3107 (Comm), [2020] QB 793 at [131]. Mr Chapman also cited, to similar effect, The Public Institution for Social Security v Al Rajan [2020] EWHC 2979 (Comm) at [187] to [208], per Henshaw J; afffmd [2022] EWCA Civ 29, [2022] 1 WLR 4193 at [82] to [83], per Carr LJ. [Back] Note 5 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast). [Back] Note 6 Powell Duffryn Plc v Wolfgang Petereit (Case C-214/89) [1992] ECR I-1745, [1992] ILPr 300. [Back] Note 8 Expert Report of Professor Gilles Cuniberti at [11] to [14]. Ms Clara Mara-Marhuenda at [13] says “I agree with the Luxembourg Law principles of contractual interpretation applicable to jurisdiction clauses which have been laid out by Professor Cuniberti”. [Back] Note 9 Expert Report of Ms Clara Mara-Marhuenda at [29]. [Back] Note 10 Expert Report of Ms Clara Mara-Marhuenda at [30] to [37]. [Back] Note 11 Etihad Airways PJSC v Flother [2020] EWCA Civ 1707, [2022] QB 303 at [85], per Henderson LJ. [Back] Note 12 See Kaefer Aislamientos SA v AMS Drilling Mexico SA [2019] EWCA 10, [2019] 1 WLR 3514. [Back] Note 13 [2001] UKHL 64, [2002] 1 All ER 749. [Back] Note 14 [2024] EWHC 734 (Comm) at [125], per Henshaw J. [Back] Note 15 The Public Institution for Social Security v Al Rajan [2020] EWHC 2979 (Comm) at [76]. [Back] Note 16 In an English court, foreign law is a matter of fact: see Lawrence Collins and Jonathan Harris, Dicey, Morris & Collins on the Conflict of Laws (16th edn, Sweet & Maxwell 2023) at [3-002] [Back] Note 17 Article 26(1) of the Hague Convention 2005 specifically provides that it "shall be interpreted so far as possible to be compatible with other treaties in force for Contracting States, whether concluded before or after this Convention”. [Back] Note 18 Etihad Airways PJSC v Flother [2020] EWCA Civ 1707, [2022] QB 303 at [87 to [88], per Henderson LJ. [Back] Note 20 Powell Duffryn Plc v Wolfgang Petereit (Case C-214/89) [1992] ECR I-1745, [1992] ILPr 300, especially at [14] [Back] Note 21 See eg Regulation (EC) No 593/2008 European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) Art 12(1)(a), which still applies (as amended) in the UK as retained EU law: see the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (UK Exit) Regulations 2019 (SI 2019 No 834) and the Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020 (SI 2020 No 1574). [Back] Note 22 See MCC Proceeds v Bishopsgate Investment Trust [1999] CLC 417 (CA) at [23]-[24]. [Back] Note 24 The Public Institution for Social Security v Al Rajan [2020] EWHC 2979 (Comm) at [275] to [276]; affmd [2022] EWCA Civ 29, [2022] 1 WLR 4193. [Back] Note 25 Expert Report of Ms Mara-Marhuenda at [30] to [37]. [Back] Note 26 See Secure Capital SA v Credit Suisse AG [2017] EWCA Civ 1486, [2017] 2 Lloyd's Rep. 599 at [5] and [19]-[23], per David Richards LJ. [Back] Note 27 [2019] EWHC 2031 (Comm) at [7] and [8]. [Back] Note 28 [2015] EWHC 405 (Comm), [2015] 1 All ER (Comm) 961 at [1] [Back]