Swycher v Vakil

LORD JUSTICE CHADWICK: There are listed before the court for directions two appeals under references 2002/1050 and 2002/1582 in proceedings brought by Mr Stuart Swycher against Dr Karim Vakil. They are appeals by Dr Vakil from orders made by Sir Oliver Popplewell, sitting as an additional judge of the High Court, on 2 May 2002 and 29 July 2002. Applications for permission to appeal from those orders were before this court (Lord Justice Aldous and Lord Justice Dyson) on 29 October 2002. Permission to appeal from so much of the order of 2 May 2002 as gave judgment for £640,800 against Dr Vakil was refused. Under the terms of the order of 29 October 2002, that sum became payable on 26 November 2002. Permission to appeal from so much of the order of 2 May 2002 as gave judgment against Dr Vakil in the further sum of £494,618 - and from so much of that order as gave judgment against him for 80% of Mr Swycher's costs in the proceedings - was granted. In those circumstances, permission to appeal from the second order - that of 29 July 2002 which required payment by Dr Vakil of £900,000 in part satisfaction of the judgment of 2 May 2002 as a condition of his being allowed to pursue a counterclaim in the action - was also granted. But the order of 29 October 2002 made by this court went on to provide that -

The two appeals were stayed pending the resolution of that issue as to standing or until further order.

The issue of Dr Vakil's standing to pursue the appeals, raised by the letter of 19 September 2002, arose in the circumstances that, on 3 July 2000, a declaration of bankruptcy had been made against him by the civil court in Lisbon. That declaration of bankruptcy was the subject of challenge in proceedings brought by Dr Vakil in Portugal by way of "embargos". The question raised by the letter of 19 September 2002 from Mr Swycher's solicitors was as to the effect of a bankruptcy declaration in the circumstances that the "embargos" proceedings had not then been finally determined. It appears that Mr Swycher and his solicitors did not know about the bankruptcy declaration at the time when the matter was before Sir Oliver Popplewell earlier in 2002: nor did the judge.

The issue as to Dr Vakil's standing was tried in the Queen's Bench Division by Mr Justice Simon. He held that -

Mr Justice Simon refused permission to appeal from his order on the grounds that an appeal would have no realistic prospect of success; and, in any event, the matter having been remitted to him from the Court of Appeal he thought it more appropriate that any question of appeal from his decision should be considered by this court. But the judge extended the time for lodging notice of appeal from his order dated 22 May 2003 to 12 June 2003.

On 12 June 2003 solicitors acting for Dr Vakil filed an appellant's notice seeking permission to appeal from the order made by Mr Justice Simon. That application is now before the court under reference 2003/1313. The grounds of appeal annexed to that notice extend over eight paragraphs. In substance two points are taken: (i) that the judge was wrong to hold that recognition should be given to the bankruptcy declaration made in Lisbon on 3 July 2000 in circumstances in which, as asserted, that declaration was not a final and conclusive judgment; and (ii) that, in any event, the judge was wrong to prefer the expert witness called on behalf of Mr Swycher over the expert called by Dr Vakil on the question whether the bankruptcy declaration should be regarded, under the law of Portugal, as having extra-territorial effect.

That application for permission to appeal was met by a counter-application made by notice dated 8 July 2003 and filed on behalf of Mr Swycher under reference 2003/1313A. Paragraph 1 of that notice seeks an order that Dr Vakil be refused permission to appeal the order of Mr Justice Simon on the ground that he has no standing to make that application. But, if I may say so, that begs the question which, if permission to appeal were granted, an appeal from the order of 22 May 2003 would itself determine.

The application of 8 July 2003 continues in these terms:

Applications 2003/1313 and 2003/1313A came before me for consideration on the papers on 14 July 2003. I adjourned both applications for an oral hearing on notice. In adjourning application 2003/1313, I said this:

In adjourning application 2003/1313A, I added the following:

There is reference in those orders to an application which had been made in Lisbon to annul the bankruptcy declaration of 3 July 2000. This is a matter to which Mr Justice Simon had referred in his judgment of 15 May 2003. It seemed to me, for the reasons which I sought to explain on 14 July 2003, that further proceedings on applications and appeals in this court should await the outcome of what I then understood to be the final hearing of that application to annul. The application had been heard in Lisbon on 15 January 2003.

Judgment on that annulment application was, in the event, handed down in Lisbon on the following day, 15 July 2003. Notwithstanding the direction which I had given in 2003/1313 on 14 July, it was not until 29 September 2003 that the Civil Appeals Office were told of that judgment by Dr Vakil's solicitors. In a letter of 29 September 2003 those solicitors wrote to inform the Civil Appeals Office that they had now managed to obtain a copy of the judgment in Portuguese - of which they enclosed a copy.

The letter continued:

The matter came back before me for directions on 14 October 2003. I directed that the applications - reference numbers 2003/1313 and 1313A - be listed for hearing on notice and that the appeals 2002/1050 and 1582 be listed for hearing immediately thereafter to show cause why those appeals should not be struck out if permission to appeal in 2003/1313 was not granted. Those directions were conveyed to Dr Vakil's solicitors, Bromptons, by the Civil Appeals Office in a letter dated 16 October 2003. That letter contained two further directions:

At that stage Messrs Bromptons remained on the record for Dr Vakil, although by notice dated 10 November 2003 they had come off the record for him in another action to which he and Mr Swycher were parties under reference HC 0005110. On 12 November 2003 Mr Swycher's solicitors enquired whether Bromptons remained acting for Dr Vakil in the present proceedings; but that enquiry appears to have received no reply. In the meantime, on 6 November 2003, a date for the hearing of the applications 2003/1313 and 1313A and the hearing to show cause why 2002/1050 and 1582 should not be struck out if permission to appeal from Mr Justice Simon's order was refused had been fixed. The hearing was fixed for this week, the 17 or 18 March 2004. Further, it appears that notice of appeal by way of "agravo" was lodged in Lisbon by Dr Vakil. The documents which have now been provided suggest that was done at or about the beginning of October 2003. That was not known either to the Civil Appeals Office or to Mr Swycher's solicitors at the time.

On 16 October 2003 the court in Lisbon gave permission to appeal by way of "agravo" with non-suspended effect. No further notice was given to the Civil Appeals Office on behalf of Dr Vakil until a letter dated 22 February 2004 from Dr Vakil himself. He is described in that letter heading as an "advogado" or lawyer. He wrote in relation to the matters fixed for hearing today in these terms:

That application for an adjournment was opposed by a letter dated 24 February 2004 from Mr Swycher's solicitors. That letter sets out the history; including the fact that the date of 18 March 2004 had been fixed from 6 November 2003 after consulting counsels' clerks then engaged. They pointed out also that Dr Vakil was in default of the order of 29 October 2002 - in that he failed to pay the judgment sum of £640,800 - and that he was in breach of Mr Justice Simon's order that he pay a sum of £30,000 on account of costs by 12 June 2003.

The application for an adjournment made in the letter of 22 February 2004 was considered by Lord Justice Ward on paper on 25 February. In refusing that application, he noted:

Dr Vakil was notified of that refusal, and the reasons for it, by a letter from the Civil Appeals Office sent to his Lisbon address on 1 March 2004. A copy of that letter was sent to the liquidatorio judicial. On the same day, 1 March 2004, Dr Vakil wrote again to the Civil Appeals Office. He sent his letter by facsimile. He referred to the letter from SJ Berwin of 24 February. He reminded the court that it was not his intention to instruct counsel due to financial constraints. He went on to say:

Dr Vakil tried again. On 16 March 2004 he wrote to the Civil Appeals Office confirming that he had received the court's direction; but pointing out that he was then in Brazil on business with clients. He said he was therefore in some difficulties in relation to the hearing this week and asked that the court reconsider its decision on the basis that he was then abroad and not due to return to Portugal until the day before the hearing. But he went on to say that he was not going to instruct lawyers in London, the matter was extremely complex and he needed to be able to digest the arguments put by his counsel in his skeleton argument in order to advance his case properly. He said:

He did not think it necessary to explain how it had been possible and sensible for him to go to Brazil in circumstances in which he had known, since at least the end of February, that no adjournment would be granted and that the hearing would take place on 18 March 2004, with him in person if necessary. His letter of 16 March 2004 concludes with this paragraph:

It was under cover of that letter of 16 March 2004 that Dr Vakil first sent to the Civil Appeals Office the documents of October 2003, from which it appears that an appeal had been lodged in Lisbon against the decision on the "embargos" proceedings. I say that "it appears from those documents". The documents are plainly not court documents. They are English translations of something - but it is unclear what. They bear no court seal and no signature. It is difficult to understand, first, why they were not sent to the court much earlier, at the latest with the letter of 22 February 2004; and, second, how it is that Dr Vakil, although not having the Portuguese documents with him in Brazil on 16 March 2004, is nevertheless able to provide from Brazil what purport to be English translations of Portuguese court documents. Be that as it may, what those documents appear to show is that there is some appeal process with non-suspended effect initiated in October 2003 against the decision handed down on 15 July 2003 following the "embargos" hearing in January 2003.

Dr Vakil has not appeared to present his application today. In those circumstances the first question for the court is whether to proceed in his absence. In my view, the right course is to do so. It is plain from the history which I have set out (1) that Dr Vakil has shown no enthusiasm for complying with the processes of this court and (2) that he has had ample opportunity to make arrangements either to appear himself today or to instruct someone else to do so on his behalf. There is no reason to think that, if any adjournment of this application were granted, Dr Vakil would be likely to appear at an adjourned hearing. Nothing in the history which I have set out suggests that he would do so. It is difficult to avoid the conclusion that his intention is to drag out this matter for as long as he can by failing to co-operate on those occasions when co-operation is required.

Accordingly I think it right to proceed to consider his application for permission to appeal under reference 2003/1313 in his absence; and thereafter - if that application fails - to consider the related applications and the question whether his appeals should now be struck out.

It is pertinent to have in mind that the question of Dr Vakil's standing, as a person declared bankrupt in Portugal, to pursue appeals and proceedings in these courts was referred by this Court to the High Court so that the position under Portuguese law could be determined with the benefit of evidence and the examination of witnesses. That is the exercise in which Mr Justice Simon was engaged in May 2003. He set out his conclusions in a fully reasoned judgment which he delivered on 15 May 2003; although the order he made was dated some seven days later.

Mr Justice Simon, who had the advantage of submissions from counsel on behalf of Dr Vakil as well as counsel for Mr Swycher and the benefit of evidence from experts in Portuguese law called on both sides, identified three questions which he needed to answer. First, what is the effect of the Portuguese bankruptcy order and its history on the standing of Dr Vakil to pursue litigation? Second, does the declaration of bankruptcy made by the Portuguese court have extra-territorial effect, so that it has impact on English proceedings? Those two questions are, of course, questions to be determined by the law of Portugal; and, as such, are questions of fact in an English court. Third, whether the English court will recognise the effect of the Portuguese order of July 2000? That is a question to be determined by English conflict of laws rules.

The judge held in answer to the first question that the adjudication that a person is bankrupt in Portugal has the automatic effect of preventing him from managing his present and future assets. From the moment of the adjudication such assets are at the disposition of the bankruptcy trustee. At paragraph 41 of his judgment he said:

The judge reached that conclusion after hearing the evidence of the Portuguese lawyers. In reaching that conclusion he was conscious of the weight which should be given to the evidence of each of them having regard to the way in which that evidence was given. It is plain that, for the reasons which he explains in paragraph 25 of his judgment, he was minded to accept the evidence of the lawyer called on behalf of Mr Swycher in preference to the evidence of the lawyer called on behalf of Dr Vakil where that evidence was in conflict. That was plainly a decision which the judge was entitled to reach after having the advantage of hearing that evidence under cross-examination. In my view, there is no real prospect that the Court of Appeal would reverse the judge's conclusion on the first of the issues he identified.

The same, as it seems to me, must be said in relation to the judge's conclusion on the second issue: that, as a matter of Portuguese law, the Portuguese bankruptcy declaration would be regarded as having extra-territorial effect. That is to say that, in Portugal, the order would be regarded as extending to assets which were outside Portugal. In reaching that conclusion the judge had regard to the authorities cited to him. It follows that I see no reason to change the view which I expressed in the first sentence of the reasons contained in my order of 14 July 2003.

In relation to the third issue, the position has now moved on. The judge took the view that English law would recognise the effect of the Portuguese bankruptcy declaration notwithstanding that there were then pending proceedings by way of "embargos" which, although heard in January 2003, had not been determined by a judgment at the time when the matter was before the judge in May 2003. The judge's view is expressed in paragraph 54 of his judgment:

Rule 35 in Dicey & Morris, 13 Edn. 2000, page 474 para 14R-018, to which the judge there referred, is in these terms:

The first question therefore was whether or not the court in Lisbon had jurisdiction to make a bankruptcy order. As to that, it plainly did have jurisdiction. Dr Vakil was, at the relevant time, domiciled in Portugal - (see Rule 22 of Dicey & Morris).

The second question is whether the bankruptcy declaration was a judgment which was final and conclusive on the merits. This is a case to which Rule 35 (2) rather than Rule 35 (1) applies. That is because Rule 35 (1) is confined to judgments in personam and this judgment or declaration is a judgment in rem - being a judgment which affects the status of the bankrupt in relation to his assets.

What is meant by final and conclusive in this context is explained by the proviso in Rule 35 (1); and further by the note which appears at paragraph 14-024 on page 478 of Dicey & Morris. The note is in these terms:

As I have indicated, events have moved on since 12 June 2003. Whether or not the judge was correct to take the view that the bankruptcy declaration was a judgment final and conclusive on the merits at a time when the "embargos" proceedings for annulment had not been determined by the Lisbon court, the position now is that those "embargos" proceedings have been determined by a judgment final and conclusive on the merits within the meaning given to that phrase in Dicey's rule; and the fact that there may be an appeal pending from that judgment does not affect that position. I say "may be" pending, because the position in relation to the current appeal is far from clear. The position is far from clear because Dr Vakil has not taken the obvious steps open to him to make the position clear. But, on the assumption that there is indeed an appeal pending, I would reach the conclusion that there is now no reason not to recognise the bankruptcy declaration of 3rd July 2000. The concern that I expressed in my reasons of 14 July 2003 has now been met by the events which occurred since that date.

In those circumstances I am satisfied that there is no prospect of success in an appeal from the order made by Mr Justice Simon on 22 May 2003, and the application 2003/1313 must be dismissed.

The effect of that is that the first paragraph of the application notice under 2003/1313A falls away and it is not necessary to make any order on it. The further effect is that no cause has been shown why the appeals under reference 2002/1050 and 2002/1223 should not be struck out on the grounds that the nominal appellant, Dr Vakil, has no standing - by reason of his bankruptcy in Portugal - to pursue those appeals. I have in mind the words of caution in paragraph 14-024 of Dicey & Morris, which I have already set out. It is necessary for the English court to consider whether to give effect to the foreign bankruptcy declaration in the circumstances that there is a possibility of appeal. But that concern is met in the circumstances that the liquidatorio judicial has been given ample opportunity to make representations to this court for the purpose of protecting Dr Vakil's estate if he considers it would be appropriate to do so.

If Dr Vakil wishes to pursue the matter further in this court then, of course, it is open to him to make an application for the order made in his absence to be reconsidered. But in order to succeed in that application he will need to explain to the court why he chose to arrange to conduct business in Brazil in the period immediately before this hearing; rather than to arrange his affairs so as to appear at this hearing and make his representations at the time fixed.

For those reasons I strike out the appeals in 2002/1050 and 1582. I make no order on the first paragraph in the application in 2003/1313A. Paragraph 2 of that application falls away and the applicant, Mr Swycher, is confirmed in the judgment which he obtained on 2 May 2002.