Jersey Unreported Judgments

Injunction - application to discharge the injunction and strike out the Order of Justice.

[2023]JRC049

Royal Court

(Samedi)

29 March 2023

Advocate J. D. Kelleher for the First Defendant.

Advocate W. A. F. Redgrave for the Second to Eighth Defendants.

judgment

the deputy bailiff:

1.        I am in receipt of an application made by the First Defendant and a separate application made by the Second to Eighth Defendants seeking a discharge of the Freezing Order granted by Order of Justice dated 24 November 2020.  I am asked to deal with this matter on the papers.  The core of the complaint purportedly made by the Plaintiffs is that the First Defendant, who was Prime Minister of Mongolia from October 2009 to August 2012 and, prior to this time, held a number of positions in the Mongolian Government and continued to enjoy political influence in Mongolia after he ceased to hold high office, had, with his co-Defendants, conspired to make secret profits from contracts awarded relating to copper mines in Mongolia.  The allegations are denied.

2.        It is said in the evidence filed by the Defendants that the underlying claim, defined as the "Mongolian Claim", which led to those proceedings being issued, was dismissed by the Mongolian Court on 18 November 2021.  Further, the Plaintiffs have been unrepresented in Jersey since 20 July 2022 and no longer have a functioning address for service in the Island or any legal representation - noting that under Rule 4/1(2) of the Royal Court Rules, the address of the last advocate who represented the Plaintiffs is deemed to be their address for service.  Under Rule 4/1, if a plaintiff has no address for service in Jersey, or the Court is satisfied that a plaintiff will not receive notice of documents sent to a deemed address for service, the Court may, on the application of any party to the proceedings, strike out the plaintiff's claim.  A similar state of affairs has arisen in other jurisdictions in which claims were purportedly brought by the Plaintiffs including, on the evidence before me, England and Wales, New York, Singapore, Hong Kong and the British Virgin Islands.

3.        In the circumstances, and I do not think it necessary for me to summarise the evidence - which is extensive - which has been filed on behalf of the Defendants, I agree that the injunctions should be discharged and the Order of Justice struck out.  I make no findings in respect of the allegations that the Plaintiffs failed to make full and frank disclosure as it is unnecessary for me to do so for the purposes of considering this application.  Subject to any arguments advanced by the Plaintiffs to the contrary, I am provisionally of the view that the Defendants' right to enforce the cross-undertaking in damages by the Plaintiffs is not affected by the striking out of the Order of Justice.  The Defendants would, of course, need to make an application if they sought to claim damages under the terms of the cross-undertaking.

4.        The Defendants also ask me to order that the Plaintiffs pay their costs on and incidental to the proceedings on the indemnity basis.  However, there is a difficulty in making such an Order on the papers.  It is stated in the affidavit sworn on behalf of the First Defendant by Jargalsaikhan Khorolsuren, a Mongolian lawyer, in support of this application (although the only relief that is referred to in the affidavit is that the injunctions be set aside and discharged and the Order of Justice struck out), that the proceedings in Jersey were commenced and pursued without authority from the Plaintiffs and the undertaking in damages purportedly given in the names of the Plaintiffs was given without their authority.  It also said that the underlying Mongolian Claim was commenced and pursued without authority from the Plaintiffs.  In the skeleton argument filed on behalf of the Second to Eighth Defendants, it is also said that the proceedings were commenced and pursued without the authority of the Plaintiffs, and that none of the Plaintiffs requested or authorised the commencement of the Mongolian Claim.

5.        Accordingly, it would not be right to visit the costs of these proceedings on the Plaintiffs without them being specifically convened and served with such an application which is a matter which, in the first instance, ought to be the subject of further directions listed before a Judge of the Royal Court with a time estimate of one hour.  The Defendants should provide draft orders to the Court in advance containing the orders which the Court is invited to make.  Such orders need to ensure that these matters are brought to the attention of the Plaintiffs in good time prior to the hearing of any such application.  If the applications for costs are to be pursued then the parties are at liberty to proceed accordingly.  Any such application must be issued within 6 months of this judgment.

No Authorities