BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
sitting as a Deputy High Court Judge
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(1) ABRAAJ INVESTMENT MANAGEMENT LIMITED (IN LIQUIDATION) (2) SAGE VENTURE GROUP LIMITED |
Claimants |
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KES POWER LIMITED |
Defendant |
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SHAN-E-ABBAS ASHARY |
Applicant |
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Roger Stewart KC and Mark Cullen (instructed by Simmons and Simmons) for the Claimants
The Defendant did not appear and was not represented
Hearing date: 18 December 2023
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Crown Copyright ©
Sean O'Sullivan KC (sitting as a Deputy High Court Judge):
The parties
7.1. AIML sold its rights and interest in the Debt (less an amount of US$1,139,526, which AIML is liable to pay to another entity) to Sage;
7.2. AIML transferred its equitable interest in the sole voting share in SPV21 to Sage; and
7.3. AIML received back an assignment of the Debt from Sage, as security for the consideration which will be payable by Sage for the Debt.
9.1. SPV21. The sole voting share in SPV21 is legally held by AIML, but (as I have indicated) it is said that the equitable interest in the voting share was transferred to Sage in August 2022; and
9.2. Al Jomaih Power Limited ("AJP") and Denham Investments Ltd ("Denham"), who the parties together call the "Original Shareholders", because they held investments in K-Electric through D before SPV21 acquired its interest in D in October 2008.
The Debt
The current proceedings and the dispute about the representation of D
The various Cayman Proceedings
Issues which are not to be decided as part of this application
Law on stays
"In my view, the starting point in any case where a stay is sought in circumstances which are not provided for by statute or rules of court, the starting point is the fundamental rule that an individual who is not under a disability, a bankrupt or a vexatious litigant, is entitled to untramelled access to a court of first instance in respect of a bona fide claim based on a properly pleaded cause of action, subject only to the sanction or consideration that he is in peril of an adverse costs order if he is unsuccessful, in respect of which the opposing party may resort to the usual remedies of execution and/or bankruptcy if such order is not complied with. This principle is of course subject to the further proviso that, if the court is satisfied that the action is not properly constituted or pleaded, or is not brought bona fide in the sense of being vexatious oppressive or otherwise an abuse of process then the court may dismiss the action or impose a stay whether under the specific provisions of the rules of court or the inherent jurisdiction of the court".
Abuse of process
"…to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power".
"well-settled practice of the court in cases in which, in proceedings brought by a company, a dispute arises as to the authority with which the company's name has been used as plaintiff. It is common practice in such cases to adjourn any motion brought to strike out the company's name, with a view to a meeting being called to see whether the company desires the action to be brought or not."
"It must be borne in mind, in my view, that blocking of a legitimate cause of action Fusion might bring by Messrs Bacon and Watts given their conflict would in my view be a breach of the fiduciary duty of directors that they owe to Fusion. It cannot be right that they take advantage of their own breach of duty in blocking a legitimate challenge against a company in which they are also interested. The courts will not allow such a position to happen."
The Applicant's allegations
"To put it in energetic terms, what the claimants have basically done is tied up and gagged the defendant, and now they want to hit him with a baseball bat whilst chastising him for not defending himself."
(1) Allegations, not facts
(2) Not abuse of process in any event
(3) Discretionary factors
(4) C's proposed way forward
Disposal