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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Collins & Ors v Wind Energy Holding Company Ltd [2025] EWHC 40 (Comm) (14 January 2025) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2025/40.html Cite as: [2025] EWHC 40 (Comm) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
Rolls Building, Fetter Lane, London, EC4A 1NL |
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B e f o r e :
____________________
IN THE MATTER OF AN ARBITRATION BETWEEN:
| (1) EMMA LOUISE COLLINS (2) AMAN LAKHANEY (3) KHADIJA BILAL SIDDIQUE (4) COLOME INVESTMENTS LIMITED (5) ALKBS LLC |
Claimants /Applicants |
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| - and - |
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| WIND ENERGY HOLDING COMPANY LTD |
Defendant / Respondent |
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AND IN THE MATTER OF AN ARBITRATION BETWEEN: |
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| (1) EMMA LOUISE COLLINS (2) THUN REANSUWAN (3) AMAN LAKHANEY (4) KHADIJA BILAL SIDDIQUE (5) COLOME INVESTMENTS LIMITED (6) KELESTON HOLDINGS LIMITED (7) ALKBS LLC |
Claimants / Respondents to Counterclaim |
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| - and - |
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| WIND ENERGY HOLDING COMPANY LTD |
Respondent / Counterclaimant |
____________________
Vernon Flynn KC (instructed by Latham & Watkins (London) LLP) for the Defendant
Hearing date: 9 October 2024
Draft judgment circulated to parties: 20 December 2024
____________________
Crown Copyright ©
Mr Justice Henshaw:
| (A) | INTRODUCTION | 3 |
| (B) | FACTS | 3 |
| (C) | PRINCIPLES | 27 |
| (D) | APPLICATION | 32 |
| Ground 1: evidential hearing in October 2024 | 32 | |
| Ground 2: approach to Sur-Reply and evidence | 36 | |
| Ground 3: approach to issue | 36 | |
| (E) | CONCLUSION | 39 |
(A) INTRODUCTION
i) by refusing to adjourn an evidential hearing, which commenced on 4 October 2023, in order to allow further time for the Claimants to obtain legal representation and/or prepare for the hearing, and for the First Claimant ("Ms Collins") to recover from a breakdown;
ii) by declining to admit certain evidence at the hearing and to test the evidence tendered by the Defendant; and
iii) by taking an inappropriate approach to various matters in the Final Award.
(B) FACTS
"As a practical matter, the Claimants cannot pursue the arbitration in circumstances where they have jointly and severally been found liable for in excess of USD500m, including incurring further costs in the arbitration proceedings. The Former WEH Managers are advised by counsel that they have good grounds for appeal and therefore intend to appeal the judgment. It is not known precisely how long the appeal process will take but the Former WEH Managers are confident that a decision can be achieved within the next 12 months. Only if the appeal is successful will the Claimants be able to proceed with the arbitration.
In the event that permission to appeal is not granted, or in the event that any appeal is ultimately lost, then the Claimants undertake to withdraw the arbitration proceedings at that stage. As such, the Claimants respectfully request the Sole Arbitrator temporarily to stay this arbitration until the outcome of the appeal."
I note that the Claimants did not in this communication suggest that the freezing order prevented them from paying for legal representation in relation to the arbitration. The arbitrator rejected the stay application the same day.
"The Claimants hereby withdraw their claim in LCIA Arbitration No: 225475.
The Claimants invite the Respondent to withdraw the counterclaim on the basis that it has already secured a decision in the Thai courts awarding the Respondent the very sum sought by way of counterclaim in the Arbitration. In the event the Respondent agrees to withdraw its counterclaim, the Claimant invites the Sole Arbitrator to issue an award recording the discontinuance of this arbitration, without prejudice, with each party bearing their own legal costs and their respective share of the expenses of the Sole Arbitrator and the LCIA.
Should the Respondent be inclined to continue to pursue its counterclaim, the Claimants respectfully request that the Sole Arbitrator dismisses the Respondent's counterclaim, with prejudice:
…".
"If, notwithstanding the above, the Sole Arbitrator is minded to permit the counterclaim to continue, the Claimants respectfully request that the procedural timetable is varied so as to allow the Claimants to negotiate terms with international arbitration counsel to secure their representation for the remainder of these proceedings. This amended procedural timetable should also enable the Parties to make one further submission each on the Respondent's altered counterclaim, as well as a significantly curtailed in-person hearing to take account of the fact that the Parties' respective amended cases will likely include significantly less (if any) witness testimony (and therefore no or very little interpretation) and will instead be focussed on legal arguments only."
There was, again, no suggestion that the freezing order would prevent international arbitration counsel from being retained.
"The Claimants are in the process of finalising their new representation in these proceedings. Regrettably, this is taking longer than expected. The Claimants will inform you immediately once these new arrangements are finalised.
As the Sole Arbitrator will be aware, the Claimants are in the extremely difficult position of having had a significant adverse judgment entered against them by the English High Court, the contents of which they disagree with fundamentally. The Claimants are in the process of appealing this judgment, which will take time and resources.
The High Court Judgment was shared with the Claimants on an embargoed basis on 24 July, i.e., five working days before the deadline of submitting the Claimants' Sur-Reply. The Claimants were not able to share the Judgment with anyone before 9:15 AM London time on 31 July but the content and practical significance of the adverse Judgment naturally had to factor into the Claimants' decision-making processes.
In the circumstances the Sur-Reply was not filed in accordance with the Sole Arbitrator's directions and, instead, to attempt to withdraw their claim without prejudice, on the basis that the Respondent would also withdraw its counterclaim. The Respondent has not withdrawn its counterclaim. This leaves the Claimants with no choice but to seek the Sole Arbitrator's permission to reinstate their claim in its entirety with immediate effect.
Reinstating the Claimants' claim is the only way the Claimants will have a reasonable opportunity of putting their case and dealing with the case of the Respondent in accordance with the requirements section 33(1)(a) of the 1996 Arbitration Act. In light of the practical difficulties resulting from the adverse High Court Judgment as well as the time it has taken the Claimants to identify and instruct appropriate alternative international arbitration counsel (and affording such counsel a short time to read in), the procedural timetable set by the Sole Arbitrator is no longer suitable to the circumstances of this particular case (section 33(1)(b) of the 1996 Arbitration Act).
In addition, the consequentials hearing in the High Court proceedings (at with leave to appeal will be sought) has just been fixed for the week of 11 September. In light of the potentially devastating consequences should the Claimants lose their appeal, a significant amount of the Claimants' resources will need to be devoted to this appeal. This would leave the Claimants' unable and unavailable to prepare for and attend any hearing in the Arbitration.
As soon as the Claimants have retained their new international arbitration counsel, the Claimants will instruct their counsel to finalise and submit to the Sole Arbitrator and the Respondent the Sur-Reply. In light of the European holiday schedule in August, this may not be achievable before the beginning of September. In light of this impediment, the current procedural timetable is unworkable and incompatible with the Claimants' fundamental right to be heard. To proceed with the evidentiary hearing during the week on 11 September would cause substantial injustice to the Claimants (section 33(1)(a) of the 1996 Arbitration Act).
The Claimants therefore respectfully request a short procedural hearing to take place at the beginning of September (subject of course to the availability of the Sole Arbitrator, counsel for the Respondent and the Claimants' new international arbitration counsel) to allow the Claimants' new international arbitration counsel to introduce themselves and to set a realistic procedural timetable for the outstanding steps in these proceedings. This will balance the need to resolve these proceedings efficiently with the Claimants' fundamental right to put its case in full."
Two points may be noted. First, it was not true that the Claimants had withdrawn their claim "without prejudice, on the basis that the Respondent would also withdraw its counterclaim". They had withdrawn it openly and unconditionally by their communication of 1 August 2023. Secondly, even though the Claimants said they were finalising their new legal representation for the arbitration, they once again made no suggestion that the freezing order would prevent such representation being provided.
"We have been recently instructed as the Claimants' international arbitration counsel in relation the above case.
We have a large amount of documents to go through within a very short period.
There are also several factual and legal issues, which need time and consideration from our perspective."
"It is not appropriate, however, for the Claimants' choice to withdraw then reinstate their claim to impact the timetable of this arbitration. The timetable was established in September 2022 and all parties have been fully aware at all times of the deadlines set out in Procedural Order No.1. The Sole Arbitrator is mindful of her duty under the LCIA Rules to conduct proceedings expeditiously and without unnecessary delay and finds that the Claimants have not shown good cause to delay the evidentiary hearing scheduled to commence on 11 September 2023.
The Sole Arbitrator's directions of 9 August 2023 are hereby vacated, save that the Respondent should still submit bookmarked pdfs of its Defence and Counterclaim and Rejoinder. The status conference set for 21 August 2023 is hereby vacated. Should the Claimants wish to submit the Sur-Reply, they have leave to do so by 25 August 2023."
"Despite requests to do so, the Claimants have not clarified whether Dr Chinawong remains instructed in this matter and whether Dr Chinawong will attend the hearing. The Respondent's request for Dr Chinawong's report to be excluded is denied, I will give the report such weight as I see fit. Absent a showing of exceptional cause, Dr Chinawong will not be permitted to attend the hearing and the Claimants are not entitled to rely on Dr Chinawong's report at the hearing.
By my ruling of 14 August 2023, Claimants were entitled to reinstate and pursue their claims but have not complied with any directions in this regard. Claimants' Counsel indicated on 23 August 2023 that they would be writing to all parties yet I have not received any correspondence in this matter. The hearing is now only two weeks away. The Respondent is entitled to know the case it faces and I am entitled to know the case I am being asked to determine.
Although newly instructed, the Claimants are represented by experienced Counsel. They are hereby directed to confer with Respondent's Counsel as soon as possible to discuss the case that they are putting. Counsel must also work together to minimise the costs which are naturally being incurred in hearing preparations. The parties are reminded that I have a broad discretion in allocating costs of the arbitration and it is incumbent upon the parties to minimise wasted costs."
"The freezing injunction, therefore, prevents the Managers from incurring liabilities or spending money that would be necessary to allow them to prosecute their claim and defend the counterclaim. The permission for expenditure of a "reasonable sum" on legal advice and representation extends only to legal advice and representation in the proceedings in which the injunction is granted. That construction follows naturally from the purpose for which the carve-out is required to be included in such injunctions and, as such, it is conventional where a respondent wishes to incur legal expenses in pursuit or defence of separate proceedings for the freezing injunction to include an express carve-out to that effect (indeed, any number of hypotheticals might be conceived that indicate why "a reasonable sum on legal advice and representation" is not understood as allowing money to be spent on legal advice and representation beyond those required for the purpose of the proceedings in which the injunction is granted).FN" [footnote] "Although it is sometimes suggested by practitioners that because the expression "a reasonable sum on legal advice and representation" (or a similar expression) is not limited to any particular proceedings, it might permit the injuncted party to spend money on legal advice and representation concerned with other proceedings or matters; but that is not how this carve-out is ordinarily understood and, at the very least, Cs should not have to run the risk of it being suggested that they are in breach of the freezing injunction by spending money on the pursuit and defence of these proceedings."
The application also stated, again for the first time, that the freezing order prevented the Claimants from paying for their Thai law expert, Dr Chinawong, to fly to London to give evidence, and prevented payment of travel costs by or for various witnesses of fact.
"9. On 31 July 2023, Signature Litigation ("Signature") withdrew acting for the Claimants in the arbitration and only continued to act on behalf of Cs in the domestic proceedings (the freezing injunction grants permission to allow the Claimants to spend a reasonable sum on legal expenses in support of their defence). The Claimants' inability to be represented properly at the trial in this arbitration is not, therefore, of their own making.
10. On 8 August 2023, Mr Lakhaney wrote to the Tribunal to inform it that the Claimants were in the process of instructing new solicitors. On 10 August 2023, the Claimants were able, provisionally, to instruct a Dubai-based firm of solicitors, Ruthberg LLC ("Ruthberg"), who routinely work in conjunction with a London-based firm of solicitors, Berkeley Rowe International Lawyers ("Berkeley Rowe"). However, in light of the freezing injunction, Ruthberg / Berkeley Rowe are only willing to act on behalf of the Claimants in the arbitration if the freezing injunction is varied to allow a reasonable amount to be spent on the prosecution of the Claimants' claim and the defence of the counterclaim in these proceedings (the Claimants have not been able to identify any third-party funding that might allow them to instruct a firm of solicitors without breaching the freezing injunction). However, even if that were to eventuate, Ruthberg / Berkeley Rowe have not been able to commit to representing the Claimants at trial due to the inadequate time to allow them and any counsel instructed to prepare.
…
12. The earliest that the trial can fairly take place is, in my view, two months after the date on which the freezing injunction is varied to allow the Claimants time to instruct solicitors and counsel to prepare for the trial (including preparation of the Sur-Reply) and make all the necessary arrangements for trial (such as booking a venue, arranging visas, and so on)."
"I am extremely concerned by this latest application on behalf of the Claimants, particularly the emergence at this late stage of the existence of the freezing injunction. I wish the Claimants to clarify a number of points.
First, Ms Collins asserts that she has formally sought permission to be able to spend funds on the arbitration and that this has not been granted. When and from whom was this permission sought?
Second, was the arbitration (and the need to spend funds on it) raised at the inter partes hearing on the freezing injunction?
Third, has an application been made to vary the freezing injunction? This is raised a number of times in the Claimants' application to adjourn the hearing. If an application has not been made, why not?
…".
The arbitrator added:
"Please note that I have already determined that the hearing of this arbitration will not be delayed until after any appeal of the decision in the English High Court. This issue should not be raised again. Any adjournment of this hearing will be, if granted, for a matter of weeks only. In the meantime, the Respondent is requested to quantity its costs incurred in relation to the Claimants' application (and the Claimants' previous applications on this issue), together with an assessment of the wasted costs should an adjournment be granted."
"1. Paragraph 19 of the freezing injunction empowers the parties' solicitors to agree to a variation of the freezing injunction without an application for variation needing to be made. Accordingly, Signature wrote to Wilkie Farr & Gallagher LLP [solicitors for the Litigation claimants] on Thursday 24 August 2023 to invite that firm to agree to expenditure in these (and other) proceedings being treated as within the scope of the legal expenditure carve-out in the injunction (there is, separately, correspondence with Wilkie Farr & Gallagher LLP about funds being used on reasonable legal fees in connection with the domestic proceedings and the source of those funds).
2. The need for the Claimants to spend money in order to pursue the claim and defend the counterclaim was not raised at the inter partes hearing. Signature remained instructed in the domestic proceedings (having withdrawn only from acting in the arbitration on 31 July 2023), but the Claimants were not aware of the need for the freezing injunction to include a carve-out to allow them to spend money on legal representation for the purpose of other proceedings, which only became apparent after the Claimants sought to instruct new solicitors and counsel. The omission to seek a variation at the time was an oversight that the Claimants are seeking to remedy; however, Ruthberg and counsel are unwilling to accept instructions to act on the Claimants' behalf in the arbitration without a variation to the freezing injunction to permit them to be paid by the Claimants.
3. The Claimants have not made an application to the Court to vary the freezing injunction whilst they are seeking to agree the payment of legal fees relating to the arbitration by consent. If an application is required to be made to the Court, the Claimants anticipate that the variation of the freezing injunction will be addressed at the consequentials hearing listed for 11-13 September 2023."
Ruthberg also asserted that:
"The application raises a substantive issue of fairness that involves, for present purposes, two questions: (i) does the Tribunal consider that the trial can fairly take place in the circumstances (bearing in mind its duties under the LCIA Rules and statute), and (ii) even if that is so, is there a risk that a Court would take a different view (with the consequences for the enforceability of any award rendered that follow). The answer to those questions is, it is respectfully submitted, clear, and they require the Tribunal to adjourn the trial."
"The Respondent addressed the Application in detail on 28 August 2023, objecting to the Application and, understandably (in the Sole Arbitrator's view), pointing out that the Claimants had not raised the issue of the freezing injunction with the Sole Arbitrator or the Respondents for almost a month. It asserted that the Application was "another guerrilla tactic which lacks any substance". It argued that the Respondent would suffer "substantial prejudice" were the Application to be granted. It did not specify the form any such alleged prejudice would take." (footnotes omitted)
and ruled:
"Under the LCIA Rules (in particular Article 14) the Sole Arbitrator has a broad discretion to conduct the arbitration in the manner she sees fit, ensuring the "fair, efficient and expeditious conduct of the arbitration". She must balance the competing interests of the parties in a fair and judicious manner. Here, although it is deeply regrettable that the Claimants did not, for whatever reason, alert the Sole Arbitrator and the Respondent to the existence of the freezing injunction until the eleventh hour, she determines that a short adjournment of the hearing is appropriate in order for the Claimants to address the scope of the freezing injunction.
It is not appropriate, however, for the Claimants to reopen previous decisions of the Sole Arbitrator. The adjournment is therefore granted on very limited grounds.
The Sole Arbitrator hereby directs:
(i) the adjournment has been granted solely to allow the Claimants time to address the scope of the freezing injunction. If it transpires that the freezing injunction does not permit the Claimants to spend monies on Counsel in this arbitration, this is not a ground for a further adjournment in this case;
(ii) the Claimants are not permitted to file or seek to file any new submissions or evidence;
(iii) pre-hearing briefing limited to 30 pages as per Procedural Order No.1 will be due one week prior to the rescheduled evidentiary hearing;
(iv) the Claimants are to pay all costs incurred in relation to the adjournment (and also, for the avoidance of doubt, all costs incurred in relation to the Sole Arbitrator's rulings of 18 July 2023 and 14 August 2023);
(v) the rescheduled evidentiary hearing in this matter will take place in October/November, subject to the availability of Counsel and the Sole Arbitrator. In this regard, the Sole Arbitrator has availability to hear this matter over five days as follows:
a. 4-6 and 9-10 October;
b. 19-20 and 23-25 October;
c. 13-17 November;
d. 20-24 November;
(vi) Counsel is directed to revert to the Sole Arbitrator by close of business on 4 September 2023 confirming their availability."
"If they want to sell the shares, they need either to seek our agreement themselves, that is Signature for Ms Collins … for a variation of the freezing order to allow them to sell it or they apply to the court. And let me make it plain; in circumstances where we have the most profound doubt as to what happened to the remainder of the £2.4 million, which Colome has received by way of dividends, we would oppose the sale of gilts. Whilst they remain gilts, we know what they are, we know where they are, they are preserved. As soon as they are liquidated and paid to Signature's account, we will no doubt be told they are being used for legal expenses in X, Y, Z, location, which we then have to consider, come to the court about, etc. There is plenty of money in the account. If they need more money, then they need to justify it.
So insofar as there is a sort of ad hoc … application by Mr Dale [counsel for Ms Collins and the other Signature Litigation defendants] on his feet for a variation of the freezing order to enable it to be sold, I resist it. We require full details of where those gilts, the money came from, before we would consider it. And that is reasonable given the very profound doubts we and the court must have as to the reliability of anything which comes from or on behalf of Ms Collins at this stage."
Colome was the 6th Defendant in the Litigation, jointly represented with Ms Collins and various other defendants by Signature Litigation. Mr Dale KC responded, objecting that the Litigation claimants were seeking to prejudice the present Claimants in their legal representation. Calver J ruled that any application to vary the freezing order would have to be made formally on proper notice to the Litigation claimants. That ruling was reflected in a written order dated 13 September 2023 and sealed on 2 October 2023.
"As you are aware, the Claimants cannot spend any sums in relation to this arbitration, as they would be in contempt of Court. The current order applies to everything except very limited personal expenses. It should further be noted that the Claimant cannot even presently pay venue fees without the risk of imprisonment.
The Claimants can only request an adjournment until the issue of the Freezing Order is resolved.
We have reiterated in the past the importance of this case as well as legal representation needed to ensure it is conducted fairly.
We should be in a clearer position on this matter by the end of November window previously requested, in which the Respondent is available in. Any potential detrimental impact raised by the Respondent is offset by the fact that as demonstrated, the Claimant cannot spend any monies on anything apart from a limited sum on the main case."
"The Claimants did not inform me of the existence of the freezing order and its impact on the Claimants' ability to disburse funds in this arbitration until 28 August 2023. On 29 August I asked "has an application been made to vary the freezing injunction?...If an application has not been made, why not?". Claimants' Counsel responded on 31 August 2023 that "if an application is required to be made to Court, the Claimants anticipate that the variation of the freezing injunction will be addressed at the consequentials hearing listed for 11-13 September 2023." It now appears that no application has been made to vary the freezing injunction, but that, according to Claimants' Counsel on 19 September 2023 "an application will be made as soon as possible." Today, there is a further request to delay the hearing, with no indication of whether an application to vary the freezing injunction will ever be made.
The freezing injunction was obtained against the Claimants on 31 July 2023. There has been ample opportunity to make the requisite application. The renewed request is denied. "
"We believe that there is a misunderstanding which we hope this email will clarify.
1. The Freezing Order prohibits any use of assets except as specified with the consent of the other side's lawyer, Wilkie Farr & Gallagher ("WFG"). A formal request was made to WFG of funds for the Arbitration. Arguably this was the 'initial application' to release funds.
2. WFG refused the request to use funds for the Arbitration.
3. With finance being a serious and legitimate issue, our clients made the same request to the same Judge who imposed the freezing order at the Consequential Hearing. This is because, again, the freezing order does have a consent mechanism that didn't need a formal application to vary the order. It would have been a waste of costs as well an aggressive act if our clients had made an application before the hearing. Such request was declined by the Judge – not least because Arbitrations are confidential and he needed further details - who then asked that a formal application be made for a variation of the Freezing Order.
4. Such application is currently being prepared but is hampered by the fact that the Claimants in the Arbitration are also making an application to stay the Judgement of Calver, J pending determination of application for leave to appeal.
As stated previously, our clients has every reason to continue with the Arbitration, they are however massively hampered by an inability to pay for the same.
In light of the above, we kindly request you revisit the decision made on Friday to allow for a few more weeks until our clients can in fact be represented properly."
"We write to you directly as we cannot pay our lawyers despite the fact that they are in fact ready and willing to take this matter forward.
We understand the hearing dates for the arbitration will remain fixed as per your last communication. As we have informed you, we are unfortunately unable to incur any costs to book the venue, however as Ms Collins resides in the UK, she shall attend the arbitration in person at any venue that you instruct her to attend. As Mr Lakhaney and Mr Reansuwan are not in country, they will be unable to attend given the same costs issues. Mr Lakhaney can make himself available via Zoom.
The process to vary the worldwide freezing order is taking more time than expected which in addition to procedure is hampered by the fact that we are unable to instruct a firm to make the application as we are unable to pay any new legal fees as per the current orders in the UK proceedings. Given this, we will unfortunately have no legal representation with us, no witnesses with the exception of Ms Collins and Mr Lakhaney (via video link) and no administrative assistance and a such we will not be able to submit a pre-hearing brief which we understand is due on 29 September.
We again reiterate that we are in this position precisely because of the Defendant's tactically cutting off funding that it was obliged to provide, and the Defendants are taking advantage of a situation of their making. We will be unable to properly pursue this claim until we have sought and obtained a variation of the Worldwide Freezing Order.
In the above circumstances we believe that it would be against the basic principles of justice for the Arbitration not to be adjourned until the Worldwide Freezing Order has been varied. Notwithstanding, Ms Collins will attend the Arbitration hearings at the appointed dates if Latham & Watkins can provide details of the time and venue."
"Thank you for your email below, the contents of which are duly noted. Ms Collins (and any other Claimants) are invited to attend any and all parts of the hearing and Ms Collins is welcome to make an opening submission setting out the Claimants' position on the claim and counterclaim.
While the hearing is a firm setting and will not be moved by me, it is always open to the parties to reach agreement on the arbitration procedure and it may be that the Claimants wish to reach out to the Respondent's representatives in this regard.
I also invite the Respondent's representatives to ensure that the Claimants are fully informed regarding hearing logistics, have received copies of the joint hearing bundle and are generally assisted where necessary as a matter of professional courtesy, given the Claimants' lack of legal representation. Please also reach out to the Claimants to discuss and amend the indicative hearing timetable as appropriate."
"… Latham & Watkins have reached out as to the hearing logistics and have asked us some questions in relation to the hearing, to which we are not clear about, but Ms Collins will reach out directly to Latham & Watkins to discuss. We had one other matter that we would please request you to consider:
1. Prior to Signature Litigation coming off the record, they had put together various documents to be submitted to the Respondent's last submission. I have attached the main documents for reference - including a draft Sur Reply, signed witness statements (incl. an expert witness statement), final unsigned witness statements (that can be signed), and relevant exhibits (exhibits not attached given size constraints). We understand that it is late but as we will not be in a position to conduct cross examinations of witnesses nor argue legal points we wanted to know if we can submit these documents so as to address the Respondent's last submission and at least be able to provide some final submissions in writing for you to consider as you make your decision.
2. Subsequently, we have also found one additional email in Ms Collins' possession which is from Watson Farley & Williams (WEH's corporate lawyer) addressed to the WEH Board of Directors specifically in relation to the Letter of Indemnity and their views on its validity. We think this is a material document and would request that it is entered into evidence.…"
The attachments to Mr Lakhaney's email were a Sur-Reply (albeit marked as a draft), two signed witness statements, three unsigned witness statements, a signed expert's report and one email.
"Please note that I have removed representatives from Ruthberg LLC from this correspondence, given that I understand that the Claimants are no longer represented in these proceedings.
I am disappointed by the Claimants' extremely late filing of a lengthy submission and evidence (in the form of a further expert report, witness statements and one additional exhibit). There was no reason why this could not have been filed sooner, rather than waiting until two working days before the evidentiary hearing.
I have determined that, in light of the fact that the Claimants are no longer legally represented and have indicated that they will not be filing a Pre-Hearing Brief, that the draft Sur-Reply will stand in lieu of a Pre-Hearing Brief. I will consider it alongside the Respondent's Pre-Hearing Brief, which I received a few minutes ago.
In relation to the late evidence, should the Respondent choose to make a formal application to exclude this evidence, I will hear that application during the evidentiary hearing. Should the Respondent not make an application, or should I determine, following any such application, that the evidence should be admitted to the record, I will, of course, accord that evidence the weight I consider it deserves.
Finally, I wish to pick up on a point in Mr Lakhaney's email of this afternoon. He says "we will not be in a position to conduct cross examinations of witnesses nor argue legal points" during the evidentiary hearing. As I made clear in my email of yesterday, as litigants in person the Claimants are invited to attend all parts of the evidentiary hearing and will be permitted to put their positions on the claim and counterclaim and participate fully in the hearing, including cross examination of witnesses and making an opening submission, should they so wish."
"5. Instructing new solicitors with an inability to spend our own funds has been challenging but we are speaking to firms on the matter so as to seek a variation of the WFO, it is just taking time.
6. In the meanwhile, as these hearing dates have been fixed and we are representing ourselves, we think that even in draft form, the replies, witness statements, and exhibits (all prepared but not served by Signature Litigation) are better than anything we would be able to prepare ourselves (as laypeople with no legal or arbitral background). These submissions would also do a better job presenting our case as they directly address the points made by the Respondent's. We did not send the exhibits and attachments to the documents sent earlier given size issues – please do let us know if these would be helpful / should be sent to you as you make your decision on whether to include them.
We also do not agree with the characterization of "guerilla tactics". There is no reason that we would risk not having made these submissions earlier at the risk of them being disregarded. We believed we had solicitors engaged and that they would have finalized these documents for submission but as explained above due to a restriction of payments, this ended up not being the case.
We also believe that the additional email that was recently located and not disclosed that sent from Watson Farley & Williams and addressed to the Respondent's board of directors goes to the heart of the matter and is material to these proceedings.
We appreciate your confirmation that we are free to engage in the proceedings to the extent we wish, and we will attempt to do so to the best of our abilities given the circumstances. We also confirm that the Respondent's lawyers did email us at 11:27pm UK time Thursday and asked for a response by 12pm the following day. We informed them that we would reach out on Monday. While their questions are second nature to them as professional litigators, we do need a little bit more time to consider what is being asked and the subsequent implications.
We do ask that you please take the above into account as you make your decision. We do apologize again as we appreciate that this is unorthodox but are sincerely attempting to do our best given where we are."
"We have been under a huge amount of pressure and stress since losing the UK civil case, legal funding and solicitors together with a judgment that has prevented us from using funds we have on account.
In addition:
1. As we have stated previously, in the UK civil proceedings, we had been diligently preparing appeal, interim stay, and stay documentation for submission to the Court of Appeal. The Permission to Appeal Skeleton, Grounds of Appeal, Stay Skeleton and ancillary documentation The preparation of these documents had as you can appreciate consumed all of our time, especially as they had to be submitted within 21 days of the consequential hearing for the UK civil proceedings. Today these documents were submitted.
2. We strongly dispute the current ruling in the UK civil case, and we understand the Respondents have used parts of that ruling in their most recent skeleton. We believe that any views taken in relation to that judgement should also take into account our grounds for appeal (which we can share with you if requested).
3. We again appreciate your invitation to participate in these proceedings. However, we believe that we have had an inability to present the claim / defend the counterclaim properly due to the lack of legal representation due to the freezing order and the fact that our solicitors were forced to stand down. We have tried to follow the process for obtaining agreement on accessing the funds we have available, and this is ongoing. We have had no interaction with lawyers or our experts and witnesses and have had to submit incomplete documents which is obviously not satisfactory.
4. The Respondent's will have one of the world's leading law firms, administrative staff and a KC and neither Ms Collins or Mr Lakhaney have no legal or arbitral background. We are worried that with no representation we would have no protection / be at risk of incriminating ourselves in other civil and criminal proceedings brought by the Respondents (in these proceedings) and the Claimants (in the UK civil proceedings).
5. As Claimants, we have repeatedly asked for a stay to these proceedings to allow us time to obtain access to our funds – we feel that this situation is very prejudicial to us as we are proceeding with attempting to amend the freezing order, but it will not be done in time to affect this hearing.
6. Given the above, Ms Collins is not in any emotional state to attend the hearing alone or submit herself to cross examination without counsel and the risk of further incriminating herself in other proceedings brought by the respondent.
7. Mr Lakhaney shares the same concerns as above but will make himself available via video link for cross examination. Mr Lakhaney will reach out to Latham & Watkins on arranging a logistics." (emphasis in original)
"My doctor, whom I saw yesterday and today, has instructed me to convey to you that I am not fit to attend the hearing as I am suffering from anxiety and depressive order. I attach my written evidence."
She attached a "Statement of Fitness for Work For social security or Statutory Sick Pay" dated 3 October 2023, in which the doctor said "Mrs Collins is taking venlafaxine antidepressant medication and has been referred to the mental health services and psychiatrist". The Statement advised that Ms Collins would not be fit for work for four weeks.
"It was therefore only on the eve of the evidentiary hearing that it became apparent that the Claimants had elected not to attend and not to exercise their rights to address the Sole Arbitrator and cross-examine the Respondent's fact and expert witnesses, on the stated grounds of concerns about possible incrimination in relation to other proceedings and, additionally in relation to Ms Collins, medical grounds.FN" (Footnote) "Ms Collins provided medical evidence of her inability to attend the evidentiary hearing by email on 3 October 2023."
"The Respondent's team has already made arrangements (including booking hotels, etc.) to attend the IDRC tomorrow and wishes for the hearing to proceed as planned, in particular because of the urgent need for the Tribunal to resolve the issue of whether the Claimants should be allowed to introduce a significant quantity of new evidence on the eve of the hearing. No good reason has been advanced by the Claimants as to why they should be given permission for this (which flies in the face of your previous orders) but we understand that you still wish the Respondent to address you on the matter at the hearing. That is the first order of business and the Respondent needs your decision so that it can plan the rest of the hearing accordingly. It is not feasible to wait until Thursday before addressing this as the new evidence impacts all aspects of the hearing (opening submissions, witness and expert evidence). The Respondent therefore wishes to address you on this in person at the IDRC tomorrow morning, so that it knows where it stands and the hearing can proceed accordingly."
The arbitrator responded indicating that the hearing would proceed as planned on 4 October.
"1. The draft witness statements of Emma Louise Collins, Aman Lakhaney and Thun Reansuwan are not admitted to the record;
2. The witness statements of Wichai Thongtang and Nuttawut Phowborom, and the second expert report of Dr Nattaphol Chinawong, are admitted to the record, with the Tribunal to give those such weight as it considers appropriate taking account those witnesses have not been made available for cross examination;
3. The email from Watson Farley & Williams to Emma Louise Collins dated 9 November 2020 is admitted to the record.
4. The Claimants' draft Sur-Reply dated 28 July 2023 will be admitted to the record and stand as the Claimants' pre-hearing brief, save that any references in that document to new material are excluded. The Tribunal has approved a redacted version of the draft Sur-Reply proposed by the Respondent (see 'A-007').
…
Further, please note that the hearing was adjourned today to give the Respondent time to address the new evidence that has been admitted to the record and will resume on Friday 6 October at 10.00am. We have separately notified Mr Lakhaney that we anticipate he will be required for cross examination from 1:00 pm (London) / 8.00 am (New York) on Friday 6 October and will be in touch with him tomorrow to confirm."
"In relation to the below notice, we are not clear / do not agree with the Claimant's witness statements not being admitted on the record as there seems to be a distinction between signed and unsigned statements – a technicality as our statements could easily have been signed before being emailed. We had asked about how to share the documents referred to therein (given size constraints) but received no response. I do reiterate that this does not seem fair as we remain litigants in person and these statements and documents were quite important as they showed the WEH board of directors, shareholders, and other key stakeholders were fully aware of the litigation and approved the payment of legal expenses.
I confirm that I have been notified by Latham & Watkins that I will be required for cross examination at 1:00 pm (London) / 8.00 am (New York) on Friday 6 October at their New York City offices and will be there at the appointed time unless otherwise notified."
i) declared that the LOI was unenforceable and rejected the Claimants' claim that WEH was in breach of it;
ii) directed that the Claimants, on a joint and several basis, should repay to WEH the £7,654,186 odd which had been paid to Stephenson Harwood and Simmons & Simmons in relation to the Claimants' legal costs, and awarded pre- and post-award interest on that sum;
iii) directed that the First to Third Claimants should repay to WEH the sums disbursed to Byrne & Partners in relation to the legal costs of Messrs Narongdej and Phowborom, plus pre- and post-award interest on those sums; and
iv) directed the Claimants to pay WEH's legal costs of the arbitration in the sum of USD 3,067,291, plus the arbitration costs of £47,700.
(C) PRINCIPLES
"33. — General duty of the tribunal.
(1) The tribunal shall—
(a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and
(b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined.
(2) The tribunal shall comply with that general duty in conducting the arbitral proceedings, in its decisions on matters of procedure and evidence and in the exercise of all other powers conferred on it."
"68. — Challenging the award: serious irregularity
(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3).
(2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant—
(a) failure by the tribunal to comply with section 33 (general duty of tribunal);
(b) the tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction: see section 67);
(c) failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by the parties;
(d) failure by the tribunal to deal with all the issues that were put to it;
(e) any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award exceeding its powers;
(f) uncertainty or ambiguity as to the effect of the award;
(g) the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy;
(h) failure to comply with the requirements as to the form of the award; or any irregularity in the conduct of the proceedings or in the award which is admitted by the tribunal or by any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award.
(3) If there is shown to be serious irregularity affecting the tribunal, the proceedings or the award, the court may—
(a) remit the award to the tribunal, in whole or in part, for reconsideration,
(b) set the award aside in whole or in part, or
(c) declare the award to be of no effect, in whole or in part.
The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.
(4) The leave of the court is required for any appeal from a decision of the court under this section."
"Article 14 Conduct of Proceedings
14.1 Under the Arbitration Agreement, the Arbitral Tribunal's general duties at all times during the arbitration shall include:
(i) a duty to act fairly and impartially as between all parties, giving each a reasonable opportunity of putting its case and dealing with that of its opponent(s); and
(ii) a duty to adopt procedures suitable to the circumstances of the arbitration, avoiding unnecessary delay and expense, so as to provide a fair, efficient and expeditious means for the final resolution of the parties' dispute.
14.2 The Arbitral Tribunal shall have the widest discretion to discharge these general duties, subject to the mandatory provisions of any applicable law or any rules of law the Arbitral Tribunal may decide to be applicable; and at all times the parties shall do everything necessary in good faith for the fair, efficient and expeditious conduct of the arbitration, including the Arbitral Tribunal's discharge of its general duties.
…
14.5 Without prejudice to the generality of the Arbitral Tribunal's discretion, after giving the parties a reasonable opportunity to state their views, the Arbitral Tribunal may, subject to the LCIA Rules, make any procedural order it considers appropriate with regard to the fair, efficient and expeditious conduct of the arbitration."
"In Ireland, a decree of judicial separation is not obtainable in a District Court, where the procedure is relatively simple, but only in the High Court. A specialist in Irish family law, Mr. Alan J. Shatter, regards the High Court as the least accessible court not only because "fees payable for representation before it are very high" but also by reason of the fact that "the procedure for instituting proceedings . . . is complex particularly in the case of those proceedings which must be commenced by a petition", such as those for separation.
Furthermore, litigation of this kind, in addition to involving complicated points of law, necessitates proof of adultery, unnatural practices or, as in the present case, cruelty; to establish the facts, expert evidence may have to be tendered and witnesses may have to be found, called and examined. What is more, marital disputes often entail an emotional involvement that is scarcely compatible with the degree of objectivity required by advocacy in court.
For these reasons, the Court considers it most improbable that a person in Mrs. Airey's position (see para. 8 above) can effectively present his or her own case. This view is corroborated by the Government's replies to the questions put by the Court, replies which reveal that in each of the 255 judicial separation proceedings initiated in Ireland in the period from January 1972 to December 1978, without exception, the petitioner was represented by a lawyer (see para. 11 above)." (§ 24)
The court made clear that that did not mean effective access to a court required legal representation in all civil cases: there may be cases where representing oneself secures adequate access even to the High Court, and "much must depend on the particular circumstances" (§ 26).
"21. A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties. That litigant's right to a fair trial under Article 6 of the European Convention on Human Rights demands nothing less. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment.
22. If there is some evidence that a litigant is unfit to attend, in particular if there is evidence that on medical grounds the litigant has been advised by a qualified person not to attend, but the tribunal or court has doubts as to whether the evidence is genuine or sufficient, the tribunal or court has a discretion whether or not to give a direction such as would enable the doubts to be resolved. Thus, one possibility is to direct that further evidence be provided promptly. Another is that the party seeking the adjournment should be invited to authorise the legal representatives for the other side to have access to the doctor giving the advice in question. The advocates on both sides can do their part in assisting the tribunal faced with such a problem to achieve a just result. I do not say that a tribunal or court necessarily makes any error of law in not taking such steps. All must depend on the particular circumstances of the case. I make these comments in recognition of the fact that applications for an adjournment on the basis of a medical certificate may present difficult problems requiring practical solutions if justice is to be achieved.
…
25. ... If a party chooses deliberately not to attend, then that is clearly most material to the exercise of discretion. But to my mind it is no less clear that if a doctor has advised his patient not to attend the hearing and the patient obeys that advice, it is unfair to describe the patient as choosing not to attend and to treat that as a factor against exercising the discretion to adjourn."
The appellant in Teinaz had provided a standard form sick certificate, which had then been supported by a more detailed letter from the doctor explaining his condition and the doctor's advice, including advice that (a) if the appellant did not take at least two weeks off work he would be in serious danger with a great risk to his health, and (b) he must equally avoid any stress-inducing task including attending any court.
"… the guiding principle in an application to adjourn of this type is whether if the trial goes ahead it will be fair in all the circumstances; that the assessment of what is fair is a fact-sensitive one, and not one to be judged by the mechanistic application of any particular checklist; that although the inability of a party himself to attend trial through illness will almost always be a highly material consideration, it is artificial to seek to draw a sharp distinction between that case and the unavailability of a witness; and that the significance to be attached to the inability of an important witness to attend through illness will vary from case to case, but that it will usually be material, and may be decisive. And if the refusal of an adjournment would make the resulting trial unfair, an adjournment should ordinarily be granted, regardless of inconvenience to the other party or other court users, unless this were outweighed by injustice to the other party that could not be compensated for."
(D) APPLICATION
Ground 1: evidential hearing in October 2024
i) The Claimants did not have any legal representation in relation to the arbitration, save in respect of the adjournment application, after Signature Litigation ceased to represent them on 1 August 2023.
ii) As the arbitrator was told, Ruthberg and Berkeley Rowe were willing to act only if the freezing order were varied; and the Claimants had not been able to find any third-party funding by that stage.
iii) Even after funding was obtained, the Claimants' lawyers would need enough time to prepare for the hearing. Ms Collins explained in the witness statement provided to the arbitrator that the earliest the evidential hearing could take place was two months after the date of variation of the freezing order to allow the Claimants' counsel to prepare.
iv) The arbitrator failed to grapple with the point that Ruthberg and Berkeley Rowe were not at that stage prepared to commit to preparing for, or representing the Claimants at, the evidential hearing until the funding issue was resolved; and seems to have proceeded on the incorrect basis that Ruthberg had been preparing and assisting the Claimants substantively in relation to the evidential hearing since mid-August 2023.
v) The lack of legal representation was not a choice made by the Claimants but a direct consequence of the freezing order having been made, and then of the Litigation claimants (who are linked to WEH) not agreeing to a variation of the freezing order to allow expenditure on legal fees for the arbitration. That was plainly tactical on the part of those ultimately behind WEH in order to prejudice the Claimants' ability to bring their claim and to defend WEH's counterclaim in the arbitration.
vi) The Claimants were led to believe by their lawyers, Signature Litigation, that submissions would be made at the return date of 14 August 2023 for variation of the freezing order, and that a formal application would be made prior to the consequentials hearing on 11 to 13 September 2023. The lawyers failed in both those respects and the Claimants are considering a potential claim against them.
vii) Even if a variation to the freezing order had been obtained after 13 September 2023, it would have still left insufficient time for any legal representatives to prepare for the evidential hearing prior to 4 October 2023, as had been made clear to the arbitrator by both Ms Collins and Ruthberg.
viii) Ms Collins' evidence is that she suffered a breakdown on 2 October 2023, requiring emergency medical treatment. Whilst the arbitrator was informed about Ms Collins' medical diagnosis only shortly before the hearing, indications had been provided at an earlier stage which put the arbitrator on notice of the issues she was facing. In particular, in her evidence in support of the adjournment application made on 28 August 2023, Ms Collins had explained "the immense emotional toll and stress that the domestic proceedings have caused and are continuing to cause."
ix) It is unrealistic to suggest (as WEH does) that Mr Lakhaney, Ms Siddique or Mr Reansuwan could have attended the hearing, made submissions, and asked questions of WEH's witnesses. None of them is legally trained. Ms Siddique had no or very limited involvement in the relevant matters (as recorded by the arbitrator in the Final Award). Further, as with Ms Collins, Mr Lakhaney and Mr Reansuwan had been busy dealing with developments in the Litigation. Given the volume of evidence, expert evidence and submissions made in the arbitration it was unrealistic to consider they could have prepared adequately for the evidential hearing. By contrast, WEH had an experienced specialist legal team which had no doubt been focusing on preparation for many weeks.
Ground 2: approach to Sur-Reply and evidence
Ground 3: approach to issues
i) she failed to identify the weight she had given to the Claimants' evidence;
ii) contrary to the rule in Hollington v Hewthorn [1943] KB 587, she relied on findings made about the Claimants' credibility as witnesses in the Judgment and in the Thai proceedings, rather than carrying out her own evaluation; and
iii) she failed, adequately or at all, to address all the disputes of fact and law on the parties' respective evidence in explaining how she had come to her conclusions.
"28. … A contention that the tribunal has ignored or failed to have regard to evidence relied upon by one of the parties cannot be the subject matter of an allegation of a serious irregularity within section 68(2)(a) or (d), for several reasons. First, the tribunal's duty is to decide the essential issues put to it for decision and to give its reasons for doing so. It does not have to deal in its reasons with each point made by a party in relation to those essential issues or refer to all the relevant evidence. Second, the assessment and evaluation of such evidence is a matter exclusively for the tribunal. The court has no role in that regard. Third, where a tribunal in its reasons has not referred to a piece of evidence which one party says is crucial the tribunal may have (i) considered it, but regarded it as not determinative, (ii) considered it, but assessed it as coming from an unreliable source, (iii) considered it, but misunderstood it or (iv) overlooked it. There may be other possibilities. Were the court to seek to determine why the tribunal had not referred to certain evidence it would have to consider the entirety of the evidence which was before the tribunal and which was relevant to the decision under challenge. Such evidence would include not only documentary evidence but also the transcripts of factual and expert evidence. Such an enquiry (in addition to being lengthy, as it certainly would be in the present case) would be an impermissible exercise for the court to undertake because it is the tribunal, not the court, that assesses the evidence adduced by the parties. Further, for the court to decide that the tribunal had overlooked certain evidence the court would have to conclude that the only inference to be drawn from the tribunal's failure to mention such evidence was that the tribunal had overlooked it. But the tribunal may have had a different view of the importance, relevance or reliability of the evidence from that of the court and so the required inference cannot be drawn. Fourth, section 68 is concerned with due process. Section 68 is not concerned with whether the tribunal has made the "right" finding of fact, any more than it is concerned with whether the tribunal has made the "right" decision in law. The suggestion that it is a serious irregularity to fail to deal with certain evidence ignores that principle. By choosing to resolve disputes by arbitration the parties clothe the tribunal with jurisdiction to make a "wrong" finding of fact."
And similarly, as regards the expression of an arbitrator's reasons for their award:
"134. … the duty to act fairly imposed by section 33 does not require the tribunal to refer in its award to all of the evidence regarded by the losing party as key or to deal with all of the submissions made in relation to the evidence but simply, in the language of section 52(4) , to set out "the reasons for the award". All that can be said is that such an approach to writing the reasons for an award is different from the current practice of the courts when writing judgments. It is true that where the evidence alleged to be key by the losing party is not referred to by the tribunal that party may sometimes be left in doubt as to what the tribunal thought of that evidence, but in circumstances where the parties have agreed that their chosen tribunal is the sole judge of fact they cannot expect the court to review the evidence in order to form a view as to whether, as is likely to be the case, the tribunal has regarded the evidence as unhelpful (for one or more reasons) or, as is unlikely to be the case, the tribunal has ignored or overlooked the evidence. As was noted by the DAC in its report (paragraph 280) "the test is not what would have happened had had the matter been litigated. To apply such a test would be to ignore the fact that the parties have agreed to arbitrate, not litigate." Were the court able to scrutinise the content or quality of a tribunal's reasons the court would have something akin to a general supervisory jurisdiction over arbitrations which it does not have. Such scrutiny would frustrate one of the principal purposes of the Arbitration Act 1996 which was, as explained in Lesotho, to limit the court's intervention in arbitration. As Tomlinson J. said in ABB AG v Hochtief Airport, at paragraph 80, a tribunal's reasons may be "unsatisfactory" but that is not a serious irregularity within section 68. "It is not for this court to tell an international commercial tribunal how to set out its award or the reasons therefor.""
See also Islamic Republic of Pakistan v Broadsheet LLC [2019] EWHC 1832 (Comm), [2019] Bus LR 2753 at [40].
(E) CONCLUSION