HIRCO & otr v HIRANANDANI & otr
|Case Reference - Division Code|
|Case Reference - Year|
|Case Reference - Number|
HIGH COURT OF JUSTICE OF THE ISLE OF MAN
CIVIL - ORDINARY PROCEDURE
09 July 2015
|The Judgment of|
His Honour The Deemster Doyle, First Deemster and Clerk of the Rolls
|Advocate Party One|
Lindsey Bermingham (Cains)
Hirco Holdings Limited
|Advocate Party Two|
Lindsey Bermingham (Cains)
|Advocate Party Three|
Charles Coleman (Gough Law)
|Advocate Party Four|
Jonathan Wild (Callin Wild)
Introduction1. On 21 February 2014 I delivered a judgment in these proceedings in which I concluded that the Isle of Man was clearly the appropriate forum for the trial of the dispute. I refused to grant a case management stay pending the determination of an arbitration in Singapore. At paragraph 121 of my judgment I stated:
"… Although it is entirely a matter for the arbitrators in Singapore I would hope they would see the good sense in staying the Singapore arbitration until the issues between all the parties have been finally determined in the Isle of Man. It is plainly undesirable in justice to have the Singapore arbitration proceeding in parallel with these legal proceedings in the Isle of Man."2. At paragraph 122 of my judgment I referred to the letters before claim being issued as long ago as December 2012. I stated:
"… These proceedings in the Isle of Man involving as they do serious allegations must now be progressed with expedition."3. At paragraph 123 of my judgment I stated that the parties should not engage in any more unnecessary time and cost wasting interlocutory skirmishes.
4. At paragraph 124 of my judgment I stated that the parties must focus now on the main issues in dispute and devote their energy and resources to an expedited judicial determination of their dispute in the Isle of Man.
5. Despite those comments made on 21 February 2014 the parties appear to have been content, until recently, to let the proceedings in the Isle of Man go to sleep and have focused their significant energy and resources, not on an expedited judicial determination of their dispute in the Isle of Man, but on an arbitration in Singapore between just two parties to the Isle of Man proceedings, namely the Second Claimant and the First Defendant. It would appear that amongst themselves the parties have, in effect, imposed the equivalent of a case management stay of the Manx proceedings pending the determination of the arbitration in Singapore.
6. It is fair to record that prior to the prolonged inactivity in these Manx proceedings there was an appeal. The First Defendant appealed against the judgment delivered on 21 February 2014 and various stays were granted. On 20 October 2014 this court made an order by consent that a first instance directions hearing scheduled for 10am on 21 October 2014 be vacated with:
"… the hearing to be re-scheduled administratively upon notification from the Claimants that the stay of proceedings ordered by the Staff of Government Division on 20 October 2014 has been lifted."7. Despite the recent flurry of activity in these proceedings there has been no application to re-schedule the directions hearing.
8. It was not until 15 June 2015 that the court received formal notification from the Claimants that the stay of proceedings ordered by the Staff of Government Division on 20 October 2014 had been lifted. Such notification was contained in a letter dated 11 June 2015 from Cains (the advocates who act for the Claimants) to my clerk, with a copy to Mr Coleman at Gough Law (who act for the First Defendant) and Mr Wild at Callin Wild (who act for the Second Defendant). Cains indicated that the stay had been lifted by order of the Staff of Government Division on 7 January 2015. Cains apologised "for failing to update His Honour in relation to the above at an earlier stage."
Summary of recent activity
9. As I say, for very many months the parties (including the Claimants) appear to have been content to let the Isle of Man proceedings fall asleep. They have now woken up with renewed energy. I endeavour to provide a brief summary of the recent activity in the Manx proceedings by referring to the following:
(1) the Second Defendant's application dated 20 April 2015 (the "Second Defendant's Security Application") for an order for security for costs against the Claimants in the sum of £8,920,000.00 to be provided in two tranches - £3.92 million within 28 days and a further £5 million on the date ordered for disclosure;A hearing is requested with a time expectation of 3 hours. I think that time estimate may be a little unrealistic without the full co-operation of the parties and their counsel.
Assistance from the parties and counsel
10. I remind counsel and the parties that in my judgment of 21 February 2014 at paragraph 122 I stressed that the parties and their legal representatives are duty-bound to assist the court in achieving the overriding objective of dealing with cases justly (Rule 1.2(4) of the Rules of the High Court of Justice 2009) and that advocates have an overriding duty to the court to ensure, in the public interest, that the proper and efficient administration of justice is achieved (Rule 19(1) of the Advocates Practice Rules 2001). A culture of helpful co-operation rather than unnecessary confrontation should guide counsel and the parties post the 2009 Rules.
Position of the Claimants
11. I refer now to the position of the Claimants.
12. Cains endeavoured to assist by their letter of 7 July 2015 where the following points, amongst others, were made:
(1) the number of applications that have arisen out of the Security Applications and the directions for each such application have become convoluted and unwieldy;13. Cains suggested that the First Defendant's Exclusion of Evidence Application and the Second Defendant's Specific Disclosure Application could be dealt with on 29 July 2015 and the Security Applications could be dealt with on the first convenient date following the summer vacation.
14. The Claimants' Adjournment Application was supported by a 14 paragraph witness statement of Neil David Kitchener QC ("Mr Kitchener") dated 30 June 2015 and a 20 paragraph 11 page statement from Timothy James House ("Mr House") dated 30 June 2015.
15. Mr Kitchener makes the following points:
(1) there is no way he can make himself available to appear on 29 July 2015 in view of his commitments to what he describes as "a highly complex arbitration in London";16. Mr House makes the following points, amongst others, in his witness statement:
(1) there have been material changes of circumstances since the Security Applications were originally listed including:17. The Defendants do not appear to take issue with the factual description of the directions or work now necessary in respect of the Singapore arbitration.
18. I note also the oral submissions of Mrs Bermingham on behalf of the Claimants. Mrs Bermingham emphasised the following points, amongst others:
(1) the First Defendant's Exclusion of Evidence Application and the Second Defendant's Specific Disclosure Application need to be dealt with before the Security Applications in order that the court makes a decision on a fully informed basis. This is particularly important in the context of the Claimants' argument that security would stifle a genuine and very strong case;19. In her reply Mrs Bermingham stated that the Claimants' primary position was that the Security Applications should not be dealt with prior to the determination of the arbitration proceedings in Singapore. That is not the order sought in the Claimant's Adjournment Application which sought the vacation of the hearing on 29 July 2015 and that the applications be "relisted on the earliest convenient date after 7 September 2015, with two days allowed."
Position of the First Defendant
20. I refer now to the position of the First Defendant. I note the letter dated 8 July 2015 from Mr Coleman at Gough Law. There is reference at paragraph 3.1 to:
"As we understand it from comments made at the 15th May 2015 hearing regarding Court availability, it is unlikely to be heard until September."21. Frankly, I do not understand that comment in respect of court availability. The problems in respect of availability discussed at the May hearing were problems which focused on counsel's lack of availability and not the availability of the court. The court has availability in July and indeed August if need be.
22. Mr Coleman makes the following points, amongst others, in his three-page letter:
(1) there is no good reason why the Security Applications should not go ahead on 29 July 2015;23. I note also the oral submissions of Mr Coleman this morning. Mr Coleman emphasised the following points, amongst others:
(1) the real motivation of the Claimants is to delay the hearing of the Security Applications until after the determination of the arbitration in Singapore which could be in the first half of next year;Position of the Second Defendant
24. I refer now to the position of the Second Defendant.
25. I note the position of the Second Defendant as outlined in the document entitled "Position Paper" dated 7 July 2015 and signed by Mr Fletcher Craine who appears on behalf of the Second Defendant today.
26. The following points, amongst others, are made in the position paper:
(1) the hearing date for the Security Applications should remain, as should the existing directions;27. At 09:13 this morning, 9 July 2015, Callin Wild emailed the court clerk a copy of their letter dated 8 July 2015 to Cains. It read as follows:
"We write further to your letter of 7th July 2015.28. I observe that the Second Defendant took no action in the Manx proceedings subsequent to the stay being lifted on 7 January 2015 until she lodged her application dated 20 April 2015 for an order requiring the Claimants to provide security for costs. Between the beginning of January and the end of April 2015 the Second Defendant did not display any eagerness apparent to the court "to progress the substantive proceedings without delay."
29. I note also the oral submissions of Mr Craine this morning. Mr Craine emphasised the following points, amongst others:
(1) the Second Defendant is eager for the claim to be progressed in a timely manner and without delay;Determination
30. I now turn to various determinations.
31. In respect of the Claimants' Adjournment Application I adjourn the Security Applications. They will not now be heard on 29 July 2015. There are a number of reasons for this.
- firstly, one day now appears to be insufficient;32. The Claimants appear to suggest (see Cains' letter dated 7 July 2015) that both the First Defendant's Exclusion of Evidence Application and the Second Defendant's Specific Disclosure Application need to be dealt with before the hearing of the Security Applications. This point was emphasised by Mrs Bermingham this morning. The Claimants seemed to be under the false impression that the Second Defendant's Specific Disclosure Application had been listed and would be dealt with on 30 July 2015. That false impression seems simply to be based on a proposal that it be heard on 30 July 2015. There is no court order to that effect. The Claimants' fears that something may be decided on 22 July 2015 and something may be differently decided on 30 July 2015 are ill-founded.
33. I am not persuaded that the Second Defendant's Specific Disclosure Application needs to be dealt with at the same time as, or prior to, the determination of the First Defendant's Exclusion of Evidence Application.
34. It is plain however, and I think is one of the few areas of common ground, that the First Defendant's Exclusion of Evidence Application needs to be dealt with before the hearing of the Security Applications. It relates to evidence filed in respect of those applications. It appears self-evident that it should be heard first.
35. Having considered everything that has now been put before the court I very much doubt that a maximum of 2 hours would be sufficient for that hearing. I list the First Defendant's Exclusion of Evidence Application for 10am on 29 July 2015 with one full day allocated.
36. The First Defendant has already filed his skeleton argument and authorities and a supplemental paginated bundle. The other bundles filed in respect of the Security Applications can also be used at the hearing of the First Defendant's Exclusion of Evidence Application on 29 July 2015.
37. On 29 June 2015 I was minded to direct that the Claimants and Second Defendant file and serve concise skeleton arguments and authorities in respect of the First Defendant's Exclusion of Evidence Application by 4pm on 14 July 2015. Having considered subsequent developments and everything that has now been put before the court I am willing to give a little further time to the Claimants and the Second Defendant to file and serve their concise skeleton arguments and authorities. These must now be filed and served before 4pm on Friday 17 July 2015 (3 working days less than the Claimants' request but 3 working days more than I was initially minded to allow). This should also, absent any future unforeseen developments and commitments, give the court time to read into the matter before 29 July 2015, which may in turn save court hearing time.
38. In respect of the Specific Disclosure Application, the determination of that application will have to wait until after the summer unless counsel can find time in August. I will not be hearing that application on 30 July 2015. I wish to focus attention on the First Defendant's Exclusion of Evidence Application. I require counsel to file within the next 14 days, if possible on an agreed basis, if not then separately, suggested directions in respect of the Specific Disclosure Application.
39. I do not require the Claimants to file at this stage a skeleton argument in opposition to the Security Applications. That part of the order made on 15 May 2015 can be discharged. The time period for the filing of the Claimants' skeleton argument in respect of the Security Applications can be revisited after I have determined the First Defendant's Exclusion of Evidence Application and then a date for the hearing of the Security Applications (with 2 days allocated) can be set after 7 September 2015. To that extent the Claimants' Adjournment Application and the Claimants' Variation Application have been dealt with. Subject to submissions I would suggest that the costs position be dealt with by making an order that costs be costs in the case.
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