CHRISTOPHER LOXTON (instructed by Wordley Partnership) for the First Defendant
MASTER PESTER:
In these proceedings, the First Defendant, Minerva Services Delaware, Inc (“MSD”), a company registered in the US state of Delaware applies, by application notice dated 9 September 2002, to strike out the Claimant’s claim against it (“the September 2022 Application”) and, by application notice dated 3 October 2022, for strike out/summary judgment on its own counterclaim against the Claimant (“the October 2022 Application”). The Claimant, Pankim Patel, opposes both the September 2022 and the October 2022 applications.
I heard both applications on 22 and 23 February 2023. This is my judgment on respectively the September 2022 Application and on the October 2022 Application. The Second and Third Defendants to the proceedings, Mr Baxendale-Walker and Mr Slater, did not take part in the hearing before me, although Counsel attended the hearing on their behalf.
Background
The background to these proceedings was described by Asplin LJ as “rather unusual”, on the occasion when an appeal by MSD came before the Court of Appeal: see [2023] EWCA Civ 118. The detailed procedural history of these proceedings is set out in a judgment of Mr Lance Ashworth KC, sitting as a deputy High Court judge, dated 9 May 2022: reported at [2022] EWHC 970 (Ch). Those interested may refer to both judgments, which set out the background to this matter in fuller detail.
In summary, Mr Patel began these proceedings by Part 8 Claim form in October 2021, seeking an anti-suit and anti-arbitration injunction against MSD, Mr Baxendale-Walker and Mr Slater, preventing them from taking any further steps in an arbitration in Delaware (“the Delaware Arbitration”) or commencing or pursuing any other claims or proceedings in any jurisdiction. Originally, there was no exception or carve-out for any proceedings in this jurisdiction.
Turning to the claim form, this pleads that the subject matter of the Delaware Arbitration was “substantially identical” to a claim issued by Bay Mining Consultants Ltd (“Bay”), of which Mr Slater is the de jure director (and also, I believe, the sole shareholder). Mr Patel’s case is that the Delaware Arbitration had been commenced at the behest of Mr Baxendale-Walker, following a failed application for an injunction by Bay. Although Bay had commenced proceedings against Mr Patel on 26 April 2021 in the QBD of the High Court, they were discontinued on 6 May 2021.
Tipples J heard Bay’s injunction application on 30 April 2021 and refused to grant it. Bay had sued in those proceedings as assignee of the benefits of a purported Deed of Fiduciary Declaration from 2008 (“the 2008 Deed”) and a further Deed of Fiduciary Declaration from 2021 (“the 2021 Deed”), under which it was claimed that Mr Patel held in excess of £11 million on trust for the principal under the Deeds. Tipples J, in a judgment reported at [2021] EWHC 1304 (QB), indicated that there was a “myriad of points” which could be made about the alleged assignment, but that she would make just one, namely, that the document did not comply with section 53(1)(c) of the Law of Property Act 1925: see at [16]. That was one of the reasons which led Tipples J to refuse to grant the injunction sought by Bay, but was not the only one.
Following those failed proceedings, MSD was incorporated in Delaware in June 2021. MSD now claims that it is the lawful assignee of sums claimed from MSD Belize 2018. It appears common ground that the arbitration was, at least in essence, in respect of the same sums claimed to have been advanced to Mr Patel under or arising out of or in connection with the 2008 Deed and 2021 Deed.
Mr Patel challenged the jurisdiction of the arbitrator in Delaware on the ground that there was no enforceable arbitration agreement. Before the arbitrator had given any ruling, Mr Patel commenced these Part 8 proceedings. On 27 December 2021, the arbitrator held that as there was a dispute as to whether there was an enforceable arbitration clause, a matter which he did not have jurisdiction to determine, he could not proceed.
Thereafter, MSD obtained the Delaware equivalent of freezing relief (a status quo order) from the Chancery Court in Delaware on 27 January 2022, on a without notice application. That relief was discharged by an order dated 7 February 2022.
Before Mr Ashworth, MSD alleged that Mr Patel had signed both Deeds under which he acknowledged that monies paid to him by Minerva Services Ltd (“Minerva BVI”), a BVI incorporated company, or by Baxendale Walker LLP, or any other representative as defined, were held for the benefit of Minerva BVI. It was also said that Mr Patel received sums totalling £9.4 million and that he holds those sums on trust for Minerva BVI in accordance with the 2008 Deed.
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