Masri & Anor v Consolidated Contractors International Co Sal & Ors

On 1 December 2010, on the without notice application of the judgment creditor, Mr. Munib Masri (the “Judgment Creditor”), I made an order (“the Third Receivership Order”) against the second judgment debtor, Consolidated Contractors (Oil & Gas) Company SAL (“CCOG”) appointing Mr. Lee Manning, a chartered accountant and a partner in Deloitte LLP, as a receiver (“the Receiver”):

“… over and in respect of all oil and rights to oil which CCOG is or may from time to time hereafter become entitled (including oil not yet allocated to CCOG) under the terms of the Joint Operating Agreement (‘JOA’) between the participants in the Masila Concession, as referred to in the said Order of 20 December 2007.”

That was a reference to a previous order dated 20 December 2007 (“the First Receivership Order”), pursuant to which I had appointed Mr. Manning receiver by way of equitable execution over CCOG’s rights to income from the Masila Concession. That order was made after full argument at an inter partes hearing. I refer to certain terms of that order below.

In addition, by the Third Receivership Order, I authorised the Receiver:

“… to receive, take possession of, sell, deal with or otherwise dispose of all such oil, and to exercise all such rights to oil, in the name of and on behalf of CCOG. … The Receiver shall hold all such oil and any proceeds thereof to the credit of this action and to the order of the Court.”

Paragraphs 2 to 7 of the Third Receivership Order were in the following terms:

“2.

For the purposes of receiving and taking possession of the oil and rights to oil as set out in paragraph [1] above, the Receiver shall be entitled to exercise in the name of CCOG, to the exclusion of CCOG or any other agent thereof, all associated rights of CCOG as set out in the JOA, including in particular CCOG’s right to be provided with information concerning oil production by Canadian Nexen Petroleum Yemen (“the Operator”) and to make nominations of quantities of oil thereunder. For the avoidance of doubt, all obligations under the JOA shall remain the responsibility of CCOG, including the obligation to pay cash calls, and the Receiver shall have no liability in relation thereto.

“3.

For the avoidance of doubt, by reason of the appointment referred to above, CCOG shall be restrained as follows.

1)

CCOG shall not receive or take for its own account, to the exclusion of the Receiver, any Masila oil to which it is or has become entitled under the JOA and must not sell, encumber or otherwise deal with any such oil. In the event that CCOG obtains possession or control of any such oil, it shall immediately take steps to transfer the same to the Receiver; and

2)

CCOG shall not commence any proceedings, nor take steps in any existing proceedings, in any jurisdiction in the world (other than in the European Union) the object or effect of which is to interfere with or obstruct the receivership, including by interfering with or obstructing the arbitration proceedings referred to at paragraph [4] below or any orders of this Court in support of such proceedings including the order referred to at paragraph [5] below, and shall not procure that others do so

from the date hereof until such time as the Receiver shall have confirmed that he has received oil (or the proceeds thereof) to the value set out in paragraph [9] below.

4.

That the Receiver be and hereby is directed to commence arbitration proceedings in the name of CCOG against the Operator under Article 17 of the JOA for the purposes of establishing his right in law as against the Operator to the receipt of the oil (and to exercise associated rights under the JOA), as Receiver for and on behalf of CCOG. The Receiver shall raise the question of his recognition by the arbitral tribunal as an issue for determination in the arbitration.

5.

That the Receiver be and hereby is directed to seek in the name of CCOG an order from this Court in the form of the attached draft Order against the Operator in support of the arbitration proceedings or prospective arbitration proceedings referred to in paragraph [4] above, to preserve CCOG’s entitlement to Masila oil in the hands of the Operator pending the outcome of the said arbitral proceedings.

6.

The Receiver shall take no steps pursuant to the extension of his appointment by reason of this order pending the return date or further order of the Court except in relation to the commencement of the arbitration proceedings referred to in [4] above and in relation to the asset preservation order referred to in [5] above. For the avoidance of doubt, the Receiver shall be entitled to enter into communications as necessary (including with the Operator, the Receiver, the arbitral tribunal or any body responsible for appointing such tribunal), and shall be entitled to take steps to enforce or otherwise ensure the effectiveness of this order and the said asset preservation order.

7.

That the Receiver’s powers under paragraph 3 of the Order of 20 December 2007 shall continue to apply to his appointment as extended pursuant to the present order. The Receiver shall in addition be entitled to take any further steps necessary in connection with the taking of possession, storage, sale or disposal of the oil, including instructing brokers or other agents for such purposes, arranging for the transport of oil by chartering vessels or entering into contracts of carriage, arranging insurance and any other steps incidental to such taking of possession, storage, sale or disposal.”

As described in greater detail below, the purpose of the arbitration proceedings was to seek recognition and enforcement of CCOG’s rights, acting by the Receiver, to receive oil and rights to oil from the Masila Concession.

Paragraph 12 of the Third Receivership Order gave permission to the Judgment Creditor to serve the order out of the jurisdiction “on CCOG and the individuals named on [sic] the penal notice”. That penal notice was endorsed on the front of the Third Receivership Order and was in the following terms:

“IF CONSOLIDATED CONTRACTORS (OIL AND GAS) COMPANY SAL DISOBEYS THIS ORDER, THE COMPANY’S ASSETS MAY BE SEIZED.

IF CONSOLIDATED CONTRACTORS (OIL AND GAS) COMPANY SAL DISOBEYS THIS ORDER, YOU, EDGARD ELIAS JOUJOU, IN YOUR CAPACITY AS ADMINISTRATOR OF THE SAID CONSOLIDATED CONTRACTORS (OIL AND GAS) COMPANY SAL, MAY BE HELD TO BE IN CONTEMPT OF COURT AND LIABLE TO IMPRISONMENT. THIS NOTICE IS GIVEN WITHOUT PREJUDICE TO ANY REPRESENTATIONS YOU MAY MAKE AS TO YOUR CAPACITY AND POSITION UNDER LEBANESE LAW AND DOES NOT REPRESENT A DETERMINATION OF ANY SUCH ISSUES.

IF CONSOLIDATED CONTRACTORS (OIL AND GAS) COMPANY SAL DISOBEYS THIS ORDER, YOU, SAID TOUFIC KHOURY, TOUFIC SAID KHOURY, SOUHEIL HASSIB SABBAGH, SAMER SAID KHOURY, SAMIR HASSIB SABBAGH AND WAEL S. KHOURY, IF FOUND TO ACT AS DIRECTORS OR OFFICERS OF THE SAID CONSOLIDATED CONTRACTORS (OIL AND GAS) COMPANY SAL, MAY BE HELD TO BE IN CONTEMPT OF COURT AND LIABLE TO IMPRISONMENT

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS THE RESPONDENT TO BREACH THE TERMS OF THIS ORDER MAY ALSO BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED”

I also ordered that there should be a further hearing in respect of the Third Receivership Order on 14 December 2010, and that CCOG should have the right to apply to vary or discharge that order at that hearing, in addition to the right conferred by paragraph 14 thereof on:

“Anyone served with or notified of this order [to] apply to the court at any time to vary or discharge this order (or so much of it as affects that person)”

Paragraphs 18 and 19 of the Third Receivership Order provided as follows:

“18.

The terms of this order will affect the following persons in a country or state outside the jurisdiction of this Court:

(A)

the Defendant or its officer or agent appointed by power of attorney;

(B)

any person who—

(1)

is subject to the jurisdiction of this court;

(2)

has been given written notice of this order at his residence or place of business within the jurisdiction of this court; and

(3)

is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order; and

(C)

any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state or is enforced, recognised or given effect to by an arbitral tribunal with jurisdiction over that person (whether such arbitral tribunal has its seat within or outside England and Wales).

19.

Nothing in this order shall, in respect of assets located outside England and Wales, prevent any third party from complying with—

(A)

What it reasonably believes to be its obligations, contractual or otherwise, under the laws and obligations of the country or state in which those assets are situated or under the proper law of any contract between itself and the Defendants; and

(B)

any orders of the courts of that country or state, provided that reasonable notice of any application for such an order is given to the Claimant’s solicitors.”

On 1 December 2010, on the without notice application of the Receiver, on behalf of CCOG, pursuant to paragraph 5 of the Third Receivership Order, I also made an asset preservation order (“the APO”) preserving the assets subject to the receivership. Such an order was intended to hold the ring pending the determination of the arbitration proceedings which I had directed the Receiver, on behalf of CCOG, to start as against Canadian Nexen Petroleum Yemen (a partnership registered in Alberta, Canada), Nexen Petroleum Operations Yemen Limited (a company incorporated in Jersey) and Nexen Inc (a company incorporated in Alberta, Canada), (together “CNPY”) as Operator under the JOA, in order to seek recognition and enforcement of the Receiver’s rights, on behalf of CCOG, to receive the oil and the rights to oil.

The APO, at paragraph 2, injuncted CNPY in the following terms:

“2.

Until the return date or further order of the Court, CNPY must not permit any person to carry out any lifting of oil to which Consolidated Contractors (Oil and Gas) Company SAL (“CCOG”) is entitled under the terms of the Masila Joint Operating Agreement as amended (“JOA”) relating to the concession known as Block 14 or the Masila Block in Masila, Yemen and must not otherwise dispose of or deal with any such oil, other than with the written consent of Mr. Manning acting as receiver for CCOG PROVIDED HOWEVER THAT CNPY may permit a lifting of such oil after the date hereof where CNPY is contractually obliged to do so by virtue of specific lifting arrangements in relation to a particular quantity of oil which were finally concluded prior to CNPY having notice of the terms of this order.”

Paragraphs 10 and 11 of the APO were in similar terms to paragraphs 18 and 19 of the Third Receivership Order:

“10.

Persons outside England and Wales

(1)

Except as provided in paragraph (2) below, the terms of this order do not affect or concern anyone outside the jurisdiction of this court.

(2)

The terms of this order will affect the following persons in a country or state outside the jurisdiction of this court—

(a)

The Defendants and CCOG or their officers or agents appointed by power of attorney

(b)

Any person who—

(i)

Is subject to the jurisdiction of this court;

(ii)

Has been given written notice of this order at his residence of place of business within the jurisdiction of this court; and

(iii)

Is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order; and

(c)

any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state.

11.

Assets located outside England and Wales.

Nothing in this order shall, in respect of assets located outside England and Wales, prevent any third party from complying with—

(1)

what it reasonably believes to be its obligations, contractual or otherwise, under the laws and obligations of the country or state in which those assets are situated or under the proper law of any contract between itself and any of the parties to the present proceedings; and

(2)

any orders of the courts of that country or state, provided that reasonable notice of any application for such an order is given to the Claimant’s solicitors.”

The APO also provided for a return date on 14 December 2010.

By an order also made on 1 December 2010, I gave permission to the Judgment Debtors, acting by the Receiver, to serve the arbitration claim form out of the jurisdiction on CNPY.

At the return date hearing on 14 December 2010:

On 14 December 2010, and subject to certain amendments to the APO as against CNPY not relevant for present purposes, I continued the APO as against CNPY on the application of CCOG, acting by the Receiver, pending a future hearing of the application for the continuation of the APO as against CNPY scheduled for January 2011. There was an adjourned hearing of that application on 31 January 2011, and on 15 February 2011, when CNPY applied to discharge the Third Receivership Order and the APO, insofar as it affected CNPY. My decision in relation to that application will be the subject of a separate judgment.

On 14 December 2010, Mr. Joujou, as the person named in the penal notice endorsed on the Third Receivership Order, applied:

“… in his personal capacity … to discharge [the Third Receivership Order] insofar as it relates to him personally.”

and, on behalf of the Judicial Administrators, to discharge the Third Receivership Order insofar as it affected them personally (Footnote: ²). The Judicial Administrators were not seeking, on behalf of CCOG to discharge the Third Receivership Order insofar as it related to CCOG, although many of Mr. Boswood’s submissions in fact suggested that that should be the result.

As at the time of the lodging of Mr. Salzedo’s skeleton argument (1:00pm on 13 December 2010), the Judgment Creditor’s solicitors had not received any indication from CCOG, the Judicial Administrators or CNPY that any application to discharge would be made, nor any statement as to what would be their respective positions at the return date hearing on 14 December 2010. Nor had the court been informed as to the length of time that would be needed for any application by the respondent parties, or, indeed, that any application to discharge would be made. During the course of the afternoon of 13 December 2010, a skeleton argument and witness statement were served on behalf of the Judicial Administrators which made it clear that the Judicial Administrators would be applying in their personal capacities to discharge the Third Receivership Order.

At the hearing on 14 December 2010, Mr. Lewis, leading counsel for the Judgment Debtors, informed me that the Judgment Debtors were presently without instructions from the Judicial Administrators as to what action to take in respect of the Judgment Creditor’s application to continue the Third Receivership Order. In written submissions on behalf of the Judgment Debtors, it was stated:

“7.

The Companies are presently without instructions from the Judicial Administrators as to what action to take in respect of this application. It is understood directions will have to be sought from the Lebanese Court. It is clear that there are serious issues to be tried and the Court of course can refuse to re-make the order of its own motion. The issues on the order are that it gives rise to concerns over sovereignty, comity and exorbitance, because:

7.1

it purports to exercise jurisdiction over the assets situated abroad in Yemen;

7.2

it purports to interpolate a receiver as a form of manager exercising direct rights to take possession of oil abroad under a contract with a third party in a foreign territory;

7.3

it indirectly impleads the State of Lebanon, which, since the commencement of the Judicial Administration, has controlled CCOG, an entity created under its law and jurisdiction;

7.4

it infringes the sovereignty of the Lebanese Court over an entity which was created under its law and jurisdiction and which is subject to its judicial administration:

7.4.1

by directing it to do that which the Lebanese court has forbidden it to do, and

7.4.2

by addressing a penal notice to the Lebanese Court’s officer, in Lebanon, demanding that he act contrary to the laws of Lebanon both in Lebanon and in other territories outside the United Kingdom.”

In the light of the absence of instructions from Mr. Joujou, no further argument was presented on behalf of the Judgment Debtors at the hearing.

Because of time pressure on the court, as a consequence of other cases also being listed for 14 December, and the need to deal with the interim position in relation to CNPY, the court heard further argument on the Judicial Administrators’ application to discharge for a full day on 15 December 2010. On 14 December 2010, I made certain amendments to the APO to safeguard CNPY’s position, but these did not affect the Judicial Administrators. On 15 December 2010, I formally continued the injunctions until further order, pending the announcement of my decision on the Judicial Administrators’ application to discharge.

On 21 December 2010, I announced my decision that I proposed to continue the Third Receivership Order with the inclusion of Mr. Joujou’s name in the penal notice, but that I would deliver my reasons on a later occasion. I ordered that the Third Receivership Order and the APO should continue in effect until further order of the court, subject to the following amendments.

“…

(a)

In place of paragraph 18(A) of the Receivership Order and Injunction, the following wording shall apply:

‘the Defendant or its officer or director or any other person acting (either alone or jointly with others) in the capacity of, or in place of, a decision making organ of the Defendant’

(b)

Paragraph 18 shall apply subject to the following proviso:

‘For the avoidance of doubt, it is not a breach of the Receivership Order and Injunction for the Judicial Administrators of CCOG to seek directions from the Courts of Lebanon as to their conduct of the Judicial Administration of CCOG.’ (Footnote: ³)

2.

So far as may be necessary, time for filing an appellant’s notice at the Court of Appeal shall be extended until 14 days after the hearing at which judgment on the Judicial Administrators’ application shall be handed down.

3.

So far as may be required, and subject as aforesaid, costs and all other consequential orders shall be adjourned to the hearing at which the said judgment shall be handed down.”

I shall refer to this order as “the revised Third Receivership Order”.

This judgment sets out my reasons for continuing the Third Receivership Order in its revised form and for not acceding to the Judicial Administrators’ application to discharge it.

It is not necessary for present purposes to rehearse the entirety of the earlier history of this lengthy litigation which has featured so frequently in the law reports. For the purposes of this judgment, the following summary will suffice:

Because the Judicial Administrators’ application to discharge the Third Receivership Order against them personally relied upon certain orders made by the Lebanese courts, it is appropriate that I should set out a summary of various applications that have been made to the Lebanese courts and the orders which have been made by those courts, as well as events affecting the corporate governance of the Judgment Debtors.

According to the evidence before me at the liability trial, the evidence before Tomlinson J and the evidence before me or referred to during the hearings in December 2010, the shares in the CC Group’s holding company (Consolidated Contractors Group SAL (Holding Company) (“CC Holding”)) are beneficially owned or controlled by members of the respective families of Mr. Khoury and Mr. Sabbagh. A very small number of shares in CCOG are held directly by Ms Salwa Khoury, a member of the Khoury family, and likewise a very small number of shares in CCIC are directly held by Mr. Samir Sabbagh, a member of the Sabbagh family.

On 10 July 2007, the Judgment Debtors brought pre-emptive declaratory proceedings in Lebanon seeking a declaration that the English judgments could not be recognised or enforced in Lebanon. The action appears not to have proceeded whilst the Lebanese Court considered the exequatur appeal. Further pleadings have now been exchanged, but they have not proceeded to judgment or determination.

On or around 9 January 2008, shortly after the making of the First Receivership Order and Freezing Order No. 1, the directors of CCOG were all replaced by individuals (and non-family members) based in Lebanon rather than Greece. Similarly, on or around 21 January 2008, all the directors of CCIC (members of the Sabbagh and Khoury families and the holding company), the principal operating company in the CCC group, said to be domiciled in Greece, were replaced by non-family members located in Lebanon.

Both before and during the period of the stay of the First Receivership Order (December 2007 to 4 April 2008), Mr. Samir Sabbagh and Ms Salwa Khoury as individual minority shareholders in the Judgment Debtors, instigated proceedings in Lebanon seeking “blocking” orders from the Lebanese Court prohibiting CCIC, CCOG and their officers from complying with the First Receivership Order, the affidavit and injunction orders, and the other orders of the English courts. Pursuant to these applications, on 14 April 2008, the Lebanese Court made an order prohibiting the Judgment Debtors or their directors from giving any information pursuant to the orders of the English court unless and until the Judgment Creditor was granted exequatur of the English judgment.

I refer to the summary of these proceedings to obtain blocking orders in the period prior to 21 October 2008, as contained in paragraphs 11 and 26 – 30 of Tomlinson J’s judgment of that date (“the Tomlinson J Judgment (Footnote: ¹⁰)”). His conclusion (see for example paragraph 28 and 29) was that it was plain:

“… that the [Judgment Debtors] have deliberately set out to obtain from the Lebanese court an order preventing compliance with the orders of a court to whose jurisdiction they have relevantly submitted, viz, the orders of Gloster J, and that they could procure the setting aside of that order if they perceived it as in their interests to do so.”

Likewise at paragraph 29, he accepted as “wholly irresistible” the inferences sought to be drawn on behalf of the Judgment Creditor: that the applications made by the Khoury and Sabbagh family members to the Lebanese Court for blocking orders “should not be regarded as applications by independent third parties to protect their legitimate interests”, but rather as “applications made at the behest of, and with the co-operation of, the Judgment Debtors themselves” and that “the Judgment Debtors are the only parties who stand to gain from the applications”.

To date, applications made by the Judgment Creditor to discharge the blocking orders have failed. Further ex parte blocking orders were obtained in 2009 at the request of shareholders of CCOG and CCIC, respectively prohibiting the Judgment Creditor from implementing various orders of the English court, including (in relation to CCOG) the First Receivership Order (Footnote: ¹¹) and (in relation to CCIC) (Footnote: ¹²) the Second Receivership Order, unless exequatur were first obtained of such orders in the Lebanon.

On or about 5 December 2008, the three Lebanese directors of the Judgment Debtors resigned. In a letter of resignation they stated that their reasons for so doing were as follows:

“In our capacity as members of [CCIC/CCOG];

Having received from the British law firm Simmons & Simmons a letter addressed to each one of us which includes a threat of criminal pursuit and of imprisonment in case we do not provide information regarding the business of the company,

And having been notified previously of a Lebanese decision precluding the provision of any information to the British courts because such provision of information would constitute a disclosure of confidential information.

Therefore,

And in order for us to preserve the interests of the company while avoiding legal pursuit before the Lebanese or British courts,

We decide to resign from the board of your esteemed company, wishing it the best,

Provided that such resignation shall have immediate effects.”

On 20 December 2008, these former directors applied to the Lebanese Court (Footnote: ¹³) for the appointment of three Judicial Administrators. The application was unopposed. The order, in relation to each of CCOG and CCIC recited:

“Whereas the position of the shareholders is that they do not oppose the judicial administration aiming primarily at electing a new Board of Directors.

Therefore, and in reference to both clauses 598/604 C.C.P., the judge hereby decides to appoint Messrs. George Sakhour and Dr. Jihad Al-Hajjar and Mr. Edgard Elias Joujou to administer the Company. Until their tasks are determined later on and until the initial two members summon a general assembly to elect a new board of directors for the Company, it is the responsibility of the administrators to represent the Company, both internally and externally either jointly or independently.

Decision issued in Beirut dated 20/12/08”

This order appears to anticipate that the Judicial Administrators’ responsibility would cease as soon as new directors were appointed, and that the purpose of the administration was to manage the business in the interim. No suggestion appears to have been made at this stage that there would be any difficulty in appointing new directors.

In paragraph 56 of the first affidavit of Georges Naffah, a Lebanese lawyer and a professor of law at the Lebanese University in Beirut, sworn on 12 November 2010 on behalf of the Judgment Debtors in contempt proceedings brought by the Judgment Creditor and currently before another judge of this court (“the Naffah Affidavit”), Professor Naffah said:

“… the very purpose of the judicial administration, as conceived by the Lebanese Court itself, is to insulate or immunise the Companies, as creatures of Lebanese law, from the pressure derived from the sanction of contempt of court contained in the extra-territorial orders made by the English Courts in support of the enforcement of the English judgment debt. The position is exactly the same as in the aforementioned Fruehauf case where a judicial administrator had been appointed over a French company to perform a contract that was contrary to an embargo decided by the US government.”

Professor Naffah did not purport to act as an independent expert, and his affidavit did not contain the usual expert’s declaration. The purpose to which he refers (i.e. to prevent enforcement of the English court orders) does not appear to be the same purpose as that stated by the Lebanese Court in its order of 20 December 2008.

In the meantime, on 12 June 2008, the Judgment Creditor had applied, ex parte, to the Lebanese Court for exequatur in respect of the three quantum orders of this court, and three other orders of the English court. On 22 December 2008, two days after the appointment of the Judicial Administrators, the Court of Appeal of Beirut granted exequatur in favour of the Judgment Creditor in respect of the three quantum orders.

In a further order made on 14 January 2009, the Lebanese Court made further orders in respect of each Judgment Debtor:

“To entrust Mr. … Joujou with the management of the Company with the assistance of [the co-administrators] on the understanding that the tasks will be defined later, provided that Mr. … Joujou shall conduct the ordinary business of the company with the obligation to seek the prior approval of the Court for any matter that is important or not covered by the above.”

On 23 January 2009, the Judicial Administrators filed an application on behalf of CCOG and CCIC to set aside the three exequatur orders obtained by the Judgment Creditor. According to Mr Joujou (Footnote: ¹⁴), the decision to do so was based on the advice of the Judgment Debtors’ lawyers that:

“… not to oppose the above-mentioned exequatur constitutes a circumvention of the court of first instance decision in respect of the case pending before it and raised by the [Judgment Debtors] in July 2007.”

which appears to be a reference to the proceedings for declaratory relief that the English judgments should not be enforced.

The decision taken by Mr. Joujou to apply to the Lebanese Court of Appeal to set aside the three exequatur orders does not appear to have been a decision taken pursuant to any directions of the Lebanese courts, but rather a decision taken by him on the advice of the Judgment Debtors’ lawyers. No explanation was given in the evidence before me as to why the Judicial Administrators considered it in the interests of CCOG or CCIC not to pay its judgment debts once exequatur had been granted.

On 21 February 2009, pursuant to an application made by Mr. Joujou, the Lebanese Court issued further directions to the Judicial Administrators in relation to two matters, namely the calling of the general assembly of CCIC and CCOG, and the conduct of the litigation between the Judgment Debtors and the Judgment Creditor. The orders provided:

“After considering the matter,

We Decide:

To approve the proposal of the Judicial Administrator in respect of convening the general assembly of the shareholders and to instruct the two assisting judicial administrators to execute this task.

To approve instructing the judicial administrator Mr. … Joujou to supervise the pleading and defences in England provided that no binding decisions are to be taken before seeking directions from this Court.

To charge the applicants to pay the advance on the fees to proceed with the above steps.”

It does not appear from the evidence before me on this application that the Lebanese court making this order was informed at this stage that Mr. Joujou had decided to appeal the order granting exequatur in favour of the Judgment Creditor, as opposed to proceeding on the basis of the exequatur orders.

General meetings of shareholders of both CCIC and CCOG were convened for 27 April 2009, but such meetings were declared inquorate because shareholders in the Judgment Debtors did not choose to attend those meetings, despite the fact that the order appointing the Judicial Administrators had specifically referred to the fact that the shareholders did not oppose “the judicial administration aiming primarily at electing a new Board of Directors.” Further meetings were called for 26 May 2009, but these were also declared inquorate for the same reason.

On 29 May 2009, Mr. Joujou made a further application to the Lebanese Court in his capacity as Judicial Administrator of the Judgment Debtors for directions as to whether:

On 1 June 2009, the Lebanese Court ruled in respect of the application and issued the following directions in relation to both CCOG and CCIC:

“Having received the petition dated 20 May, 2009

And based on the fact that the decision on the payment of the English judgment sum of sixty five million US dollars by the Company is not a matter than can be decided by the judicial administrator without the consent of the Court,

We hereby instruct the judicial administrator to take all necessary actions and measures to defend the interest of the Company by all legal and judicial means he considers appropriate including the continuation of the legal actions outlined in the petition dated 20 May, 2009.”

In a letter dated 5 June 2009 to Simmons & Simmons, solicitors for the Judgment Creditor, Mr. Joujou said that, in accordance with this order, he had been expressly instructed to continue the opposition to the Judgment Creditor’s application for exequatur, and not to meet the English judgments in the meantime.

On 8 April 2010, on the application of the Judgment Debtors, acting by the Judicial Administrators, the Lebanese Court set aside the previous ex parte exequatur orders granted in favour of the Judgment Creditor. This decision appears to have been based on a finding that it was not appropriate to issue orders of exequatur in relation to the quantum judgments, without considering the primary English judgments on liability on which they were based, and in respect of which no exequatur had been obtained. A number of other points were taken by the Judgment Debtors but these were rejected.

The Judgment Creditor is in the course of appealing this decision to the Lebanese Court of Cassation.

On 17 September 2010, Mr. Joujou lodged a further application to the Lebanese Court, updating the court on the committal proceedings and seeking further directions in respect of the application for contempt of court made against the Judgment Debtors.

On 4 October 2010, the Lebanese Court issued the following ruling in respect of this application.

“To instruct the Judicial Administrator not to take any step leading to the carrying out of the decisions issued by the foreign courts at the request of Mr Munib Masri unless and until they are granted exequatur by the Lebanese courts, in particular in relation to any requests for the disclosure of documents or the disclosure of confidential information relating to the Company to Mr Masri, or the transfer of monies to the English receiver appointed by the English courts, or the cooperation with the latter through the provision of information and other steps.”

The reasons given by the Lebanese Court for this decision were as follows:

“Whereas the Company had initially and on purpose taken the decision not to pay the amounts requested by Mr Munib Masri before the order instituting the judicial administration was given,

Whereas, pursuant to the obligation of the Court supervising the judicial administration to preserve the interests of the Company and to abide by the principle of caution in respect of the issue of payment of large debts, specifically those that have been the subject of opposition by the Company before the court prior to the institution of the judicial administration,

Noting the necessity to abide by the obligation not to pay until and after the rendering of a court decision obliging said payment and issued by the competent Lebanese judicial authority,

Whereas, the foreign orders are not enforceable against the Company and hence are not binding upon the Company until they are granted exequatur by virtue of a decision given by the Lebanese courts,

Whereas, it does not appear, as to date, that such decision has been rendered regarding any of the judgments issued by the English courts in spite of Mr Masri’s application to the Lebanese courts to obtain orders granting exequatur,

Noting that Mr Masri has not made any opposition nor any request in the proceedings before this court.”

Mr Joujou is the managing partner of KPMG, Lebanon, a member firm of KPMG International. He is a graduate of Cambridge University, has a MA from London University, and qualified as a chartered accountant with the London office of Ernst & Young. He is a Certified Public Accountant in Lebanon. He states he has extensive audit and financial advisory experience. He has dual Lebanese and UK nationality and speaks fluent English. His professional and personal commitments mean that he may need to travel to the UK on occasions. Mr. Boswood informed me that Mr. Joujou may need to do so not least in order to discharge his duty to the Beirut Court to conduct the present proceedings on behalf of the Judgment Debtors. Mr. Boswood also informed me that Mr. Joujou considers that he is unable to do so as matters stand in the light of the Third Receivership Order for fear of proceedings which might be served upon him here to hold him in contempt of court.

At a meeting held in Paris on 7 April 2009, attended by representatives from Simmons & Simmons, Mr. Joujou, Mr. Mallat (legal advisor to Mr. Joujou), Mr. Marina (a representative of CCIC), and a representative from Olswang, the Judgment Debtors’ solicitor, Mr. Joujou confirmed that he was conducting sales of oil from the Masila Concession for CCOG and that he saw his role as ensuring that he obtained the best price for the oil. In a response to a letter dated 2009 from Simmons & Simmons seeking confirmation of this statement, Mr. Joujou did not deny the position in regard to CCOG’s sales of oil from the Masila Concession, but stated that he was prohibited from confirming whether CCOG had in fact sold oil or received proceeds from the sale of oil, as any such confirmation would be providing confidential information contrary to the orders of the Beirut Court.

In his witness statement, Mr. Joujou sets out his position. I have attached a copy of that statement as Annex 1 to this judgment. It would appear from that statement that Mr. Joujou does not merely seek the deletion of his name from the penal notice endorsed on the front of the Third Receivership Order, but also the discharge of the entirety of the order, insofar as it personally affects the Judicial Administrators. Mr. Boswood’s submissions were to like effect, although the latter went further to suggest that the orders against the Judgment Debtors themselves should be discharged.

It appears that on 22 April 2007, CCIC and CCOG commenced proceedings in the Republic of Yemen seeking to re-litigate the same issues in the Yemeni courts that had been determined in the final judgments of the English courts. As I have already mentioned, on 25 May 2007, on the application of the Judgment Creditor, this court (HHJ Mackie QC) granted an anti-suit injunction which prohibited CCIC and CCOG from commencing proceedings in other countries (other than EU Member States). The anti-suit injunction was appealed by the Judgment Debtors and a judgment was handed down by the Court of Appeal on 6 June 2008, dismissing the appeal. Following the grant of the injunction, and after some delay, the Yemeni proceedings were discontinued by the Judgment Debtors.

On 28 February 2010, CCOG filed further proceedings in Yemen, stating that it had not sold any oil since March 2008 as a result of the Judgment Creditor’s “… illegal actions and operations” which include, “… in exchange for a fee, to appoint a consultancy firm called Deloitte to interfere in a direct and negative way in the relationship between the plaintiff and the traditional buyers as well as potential buyers of [CCOG’s] oil from Yemen”.

It would appear that this is a reference to the Receiver’s appointment pursuant to the First Receivership Order. In the proceedings, CCOG also claims that the Judgment Creditor has conducted a widespread media campaign and that it has appointed an unnamed “British consultant” (apparently a reference to Simmons & Simmons) to threaten CCOG’s independent agent who was authorised to sell CCOG’s oil.

The evidence from the Judgment Creditor before me was that these proceedings had been dismissed by the Yemeni Court. However, the evidence of Mr. S C Andrew, a partner in S C Andrew LLP, solicitors for the Judgment Debtors, refers to there having been a further hearing in these proceedings on 27 November 2010. I was not informed of the outcome of this latter hearing.

The Judgment Creditor also sought to have the English judgments recognised in Greece, in accordance with the provisions of EC Regulation 44/2001 (“the Brussels Regulation). The judgments were recognised pursuant to a Greek judgment dated 21 October 2010, but the Judgment Debtors have lodged an appeal against recognition. There is some evidence to suggest that the Judgment Debtors have assets in Greece.

However, before the Judgment Creditor’s proceedings were issued, in September 2007 the Judgment Debtors commenced proceedings in Greece for a declaration that the English judgments should not be recognised or enforced in Greece. This application was lodged despite the provisions of the Brussels Regulation to the effect that a judgment creditor should be able to register a judgment in another Member State without any intervention by the judgment debtor: the judgment debtor only has the right to appeal the decision after it has been made.

The Judgment Debtors also began a second and third Greek claim on or around 17 April 2008. The second claim sought to re-litigate the issues that were determined in the English judgments. The third claim sought damages of some US$1 million on the alleged grounds that the Judgment Creditor attempted to serve documents on members of the Khoury family in Greece in a manner which did not comply with Greek law. It also sought an injunction prohibiting the Judgment Creditor from serving further court documents with a penal notice on the Judgment Debtors or their officers in Greece. The first and second claims of CCIC and CCOG in Greece were dismissed in a judgment dated 31 September 2010. However, I was informed that CCIC and CCOG may be appealing against those decisions.

The Judgment Creditor has also brought proceedings in other jurisdictions to seek to enforce his judgment These include the Cayman Islands, Azerbaijan, Bermuda and Qatar. To date, none of these proceedings has resulted in any significant recovery.

At the without notice hearing before the court on 1 December 2010, a number of grounds were advanced on behalf of the Judgment Creditor as to why it was necessary to extend the assets over which the Receiver should be appointed so that they included not just the proceeds from the sale of the oil, but CCOG’s share of the oil itself, including oil entitlements which will arise in future in respect of the CCOG’s contractual rights. I refer in particular to paragraphs 109-121 of Mr. Bartlett’s affidavit dated 30 November 2010.

In summary, Mr. Salzedo submitted as follows:

I accepted those submissions (and other submissions made by Mr. Salzedo) at the without notice hearing, as providing justifiable grounds for extending the ambit of the First Receivership Order and granting the APO. At the hearing on 1 December 2010, I asked the question whether the decision of the House of Lords in Masri v Consolidated Contractors (No 4) (Footnote: ¹⁵) affected the question whether penal notices should be included in the orders made at that hearing, not only as against Mr. Joujou, but also as against other alleged controllers of the Judgment Debtors who are not ordinarily resident in England and Wales. Mr. Salzedo provided the court with a supplemental submission dated 2 December 2010 in relation to penal notices. Taking into account those submissions, I made the Third Receivership Order on 1 December 2010 with the penal endorsement as set out above.

I turn now to consider the arguments put forward by Mr. Boswood at the hearing on 14 and 15 December 2010, on behalf of the Judicial Administrators, as to why the Third Receivership Order should be discharged.

Mr. Boswood’s argument may be summarised as follows:

I do not separately summarise the submissions put forward by Mr. Salzedo, on behalf of the Judgment Creditor, in response to Mr. Boswood’s submissions, as my reasons for continuing the Third Receivership Order in its revised form reflect, to a considerable extent, the submissions which Mr. Salzedo made at the hearing.

I start from the proposition that:

“The demands of justice must always be the over-riding consideration in considering the scope of the jurisdiction under section 37(1) [of the Senior Courts Act 1981].” (Footnote: ²³)

I also bear in mind that before this court makes an order such as the receivership order sought here, which may have extra-territorial effect, it

“… must as always, have regard to its international obligations and take care not to arrogate to itself powers which properly belong elsewhere.” (Footnote: ²⁴)

In particular, this court is very mindful that it must not trespass on what are matters properly within the jurisdiction of the Lebanese Court, or appear in any way to be dictating to, or interfering with, the powers of the Lebanese Court in derogation from universal principles of comity.

The general merits of the case which informed the exercise of my discretion to grant and continue the Third Receivership Order as against CCOG after the on notice hearing are largely those set out in paragraph 61 above. Unless such an order were made, it would, as the history of the Receiver’s unsuccessful attempts to implement the First and Second Receivership Orders have shown, be impossible for the Receiver to take effective steps to attach CCOG’s oil and entitlement to oil in the Masila Concession to enforce the judgment. There was a sufficient connection with England and Wales to found subject matter jurisdiction against CCOG for the purposes of the Third Receivership Order, given the submission of the Judgment Debtors to the jurisdiction, the various judgments, and in particular, the ability to enforce CCOG’s rights, acting by the Receiver, to its oil entitlement as against CNPY through the mechanism of English arbitration proceedings. The granting of the extended receivership order as against CCOG provided at least a prospect of assisting in the process of the ultimate collection of the judgment debt. That was a legitimate purpose.

Moreover, in my judgment there is a real, substantial and increased risk of dissipation, since the date of the First and Second Receivership Orders.

The recent history of the Judgment Debtors’ and their shareholders’ deliberate attempts to obtain orders of the Lebanese Court blocking the Judgment Debtors from paying the judgment debts to the Judgment Creditor, the subsequent wholesale resignations of CCOG’s and CCIC’s directors and those directors’ application (not opposed by the shareholders) for the appointment by the Lebanese Court of Judicial Administrators, and the refusal of any shareholders to constitute quorate shareholders’ meetings of CCOG and CCIC, leads to the drawing of only one inference. That inference is that the application to the Lebanese Court for the appointment of the Judicial Administrators, so that the management of the Judgment Debtors could be carried out by the Judicial Administrators, and the refusal of the shareholders to participate in shareholders’ meetings so as to re-elect directors, is the implementation of a deliberate strategy on the part of the Judgment Debtors and their shareholders, designed to frustrate any attempt by the Judgment Creditor to enforce the judgment debt and to render the Judgment Debtors effectively judgment-proof in any jurisdiction.

It is clear from the Lebanese Court’s order of 20 December 2008 that the grounds which were said to justify the appointment of the Judicial Administrators was the “vacancy in the management of the company exposing its interests to harm”. That vacancy and the continuing refusal of the Judgment Debtors’ shareholders to participate in meetings called by Mr. Joujou was entirely self-induced by the Judgment Debtors and their controlling shareholders, who, by refusing to attend the shareholders’ meetings have clearly expressed their determination to keep the Judgment Debtors without a legally appointed board (Footnote: ²⁵). I have little doubt that they regard the purpose of the administration as indeed being that described by Professor Naffah which I have referred to above, namely to insulate or immunise the Judgment Debtors from the pressure that would otherwise be put on them by the risk of being in contempt of this court. The so-called “corporate crisis” and double jeopardy which the Judgment Debtors – and the Judicial Administrators – potentially face, is one that has been deliberately engineered and maintained by the Judgment Debtors and their shareholders.

Despite the fact that, once a judicial administrator is appointed, the powers of the directors are transferred to the judicial administrator, the judicial administrator does not have to report to the shareholders, and it is for the court to decide how long the judicial administration should last, I, like Tomlinson J (Footnote: ²⁶), have no doubt that if they perceived it as being in their interests to do so, CCOG and CCIC and their controlling shareholders could effectively refer or apply to the Lebanese Court to take back control of the Judgment Debtors or to request the Lebanese Court to direct the Judicial Administrators to honour the Judgment Debtors’ judgment debt to the Judgment Creditor (Footnote: ²⁷). For the purposes of this application, I also accept Professor Slim’s evidence (Footnote: ²⁸) that “the purpose of the appointment of a judicial administrator is not to ‘insulate’ and ‘immunise’ a company against foreign proceedings, including contempt proceedings for breaches of court orders”.

In making these comments, I am not suggesting either that the order appointing the Judicial Administrators by the Lebanese Court was a sham, or that the order was one which the Lebanese Court was not entitled to make, or should not have made. These are matters for the Lebanese Court, with whose jurisdiction in relation to such matters I would not presume to interfere. The fact that such orders have been made are necessarily matters which I must (and do) take into account in deciding whether, given that they have been made, I must discharge the Third Receivership Order as against the Judicial Administrators or whether, in the exercise of my discretion, I should do so.

But the starting point is that the constraints to which CCOG and CCIC and the Judicial Administrators are currently subject, as a result of the orders of the Lebanese Court and the appointment of the Judicial Administrators, have been brought about entirely as a result of actions deliberately taken on behalf of the Judgment Debtors and their controlling shareholders, as part of a sophisticated strategy to render the Judgment Debtors judgment-proof. This is not a case where judicial administrators have been appointed over the affairs of an insolvent, or borderline insolvent, company, in order to protect the assets of the company in the interests of creditors, or one where the court’s intervention has been rendered necessary in order to preserve the business of the company as a result of dissension between majority and minority shareholders. There is here no genuine dysfunction of the managing organs of the companies.

It is against the above background that I approach the Judicial Administrators’ application to discharge the Third Receivership Order insofar as it affects them personally.

As Mr. Salzedo submitted, the function of the penal notice which is required to be “prominently displayed” on the front of any copy of an order requiring a body corporate to do or abstain from doing an act, is to warn the particular officer of the body corporate that disobedience to the order would be a contempt of court which may be punishable by the imprisonment of any individual responsible: see RSC Order 45 rules 5 and 7(2), (4), (6) and (7). Subject to the court’s power to dispense with service of a copy of the order endorsed with the notice, in appropriate circumstances (under RSC Order 45 rule 7(6) or (7)), an order for committal will not be made against an officer unless such a notice has been served.

Thus, the inclusion of Mr. Joujou’s name in the penal notice per se does not affect the question whether he is, or is not, bound by the terms of the actual order. It only strictly affects the question whether or not an order can be enforced against such a person by committal, although Mr. Salzedo accepted that it would not be proper to include a person’s name in such a notice if there was no justification for including him as an officer or a person responsible for the body corporate’s acts or omissions, because he was genuinely a third party. I accept Mr. Salzedo’s submission that the critical issue is whether Mr. Joujou (and, indeed, the other Judicial Administrators) should be included in the wording of paragraph 18(A) of the revised Third Receivership Order as an:

“… officer or director or any other person acting (either alone or jointly with others) in the capacity of, or in place of, a decision making organ of the Defendant.”

as opposed to being identified as merely “any other person” within paragraph 18(C) of the Third Receivership Order, and therefore having the benefit of the standard Babanaft proviso:

“… only to the extent that this order is declared enforceable by or is enforced by a court in that country or state or is enforced, recognised or given effect to by an arbitral tribunal with jurisdiction over that person.”

I also accept Mr. Salzedo’s submission that, if I take the view, despite Mr. Boswood’s submissions, that Mr. Joujou should be included, then questions as to whether an application for committal for contempt could or should be served out of the jurisdiction or within the jurisdiction, as against Mr. Joujou in relation, for example, to acts committed outside the jurisdiction (whether in Lebanon or elsewhere) is a jurisdictional issue for determination at a further date. As, of course, is any factual question as to whether he is in contempt.

However, the fact is that the issue whether Mr. Joujou should be bound by paragraph 18(A) of the Third Receivership Order arises not only in the context of acts or omissions of CCOG out of the jurisdiction, but also in the context of CCOG’s acts or omissions (acting through Mr. Joujou) within the jurisdiction. I mention, by way of example, the possibility of interference by CCOG, acting (or purporting to act) by the Judicial Administrators, with CCOG’s conduct of the English arbitration proceedings against CNPY which I have directed the Receiver to bring acting on CCOG’s behalf.

Mr. Boswood also complained about the inclusion of the “without prejudice” wording in the penal notice, but, in my judgment, this criticism was unfounded. I ordered that this wording should continue to be used, as it makes clear that this court is not, on this application, determining Mr. Joujou’s capacity or status under Lebanese law. It would not be appropriate to do so in the absence of full argument and cross-examination of the Lebanese law experts.

In the light of Mr. Boswood’s submissions, this question raises the following issues:

The standard wording which appears in paragraph 18(A) of the Third Receivership Order including: “officers or agents appointed by power of attorney” (“the standard officers’ wording”) is the same as, or similar to, that which appears, or has appeared, in the standard forms of world-wide freezing order for many years (Footnote: ³¹). According to Mr. Salzedo’s research, the first use of the standard officers’ wording appeared in Derby & Co Ltd v Weldon (Nos. 3 and 4) (Footnote: ³²); see, in particular, the discussion in the judgment of Lord Donaldson MR at pages 84D – E and 86G – 87C, and per Neill LJ at 84C – E. Interestingly, a proviso in those terms was included in the context of a receivership order over the assets of a foreign company, not merely that of a freezing order.

This was a decision after Babanaft (to which the Court of Appeal referred in Derby v Weldon). The statement of Nicholls LJ in Babanaft at page 45 (quoted at paragraph 64.i)b) above) upon which Mr. Boswood relied, must have been considered in Derby v Weldon by the Court of Appeal who nonetheless made the order in the terms which they did, including a reference to “… officers or agents appointed by power of attorney” being affected by the terms of the order outside the jurisdiction, notwithstanding that such order had not been declared enforceable by a foreign court. The Court of Appeal therefore cannot have thought that Nicholls LJ’s dictum required them to exclude officers or “directing minds”.

Apart from the fact that countless orders have been made including the standard officers’ wording since the decision in Babanaft, the Court of Appeal in this case has confirmed both the First Receivership Order and the Second Receivership Order with the inclusion of such wording. The practice is well-established.

Moreover, the editors of the Fifth Edition of Briggs on Civil Jurisdiction (which was published in 2009, after the House of Lords’ decision in Masri (No. 4), and contains references to it) refers to the Babanaft proviso (including the standard officers’ wording) as “… the present exemplary version of the notice in respect of third parties outside the jurisdiction.” (Footnote: ³³)

The decision of the House of Lords in Masri (No. 4) was a decision on the construction of CPR Part 71.1. Their Lordships concluded that given (inter alia) its historical context, CPR Part 71.2 could not be construed as applying extra-territorially to directors or officers of a corporate judgment debtor who were third parties for this purpose and whose position was to be regarded “as closer to that of ordinary witnesses” (Footnote: ³⁴). The House of Lords held that their conclusion was reinforced by a consideration of the position in relation to service. They held that neither CPR Rules 6.20(9) nor 6.30(2) (as then in force), properly construed, permitted service of such a summons outside the jurisdiction.

However, the House of Lords in Masri (No. 4) did not consider the position whether a director or officer out of the jurisdiction could be liable for contempt of court or whether contempt proceedings could be served on such a person outside the jurisdiction, or served within the jurisdiction in relation to acts outside the jurisdiction. That would have required the House to consider, inter alia: the construction and legislative intendment of RSC Order 45, Rule 5 (with its express references to officers of bodies corporate); the decision of the Court of Appeal in Mansour v Mansour (Footnote: ³⁵); the terms of the Babanaft proviso, including the standard officers’ wording; and whether service is permitted under the enforcement gateway in Practice Direction 6B, paragraph 3.1(10), not least because RSC Order 45 Rule 5(1) expressly provides that a judgment or order may be enforced by committal proceedings against a director or other officer of the defendant.

Accordingly, I consider that neither the decision nor the reasoning in Masri (No. 4) requires me, without more, to exclude any references to the Judicial Administrators or Mr. Joujou in paragraph 18(A) of the revised Third Receivership Order. On the contrary, I consider that the Judgment Creditor has a good arguable case for such inclusion. First of all, as Mr. Salzedo submitted, the issue whether the Judicial Administrators are subject to such orders, or can be served with them, falls to be determined if and when contempt proceedings are served outside the jurisdiction on any of the Judicial Administrators. Second, there is a real possibility that Mr. Joujou could be served within the jurisdiction (Footnote: ³⁶). Third, as I have mentioned, there is a real possibility that CCOG, acting by Mr. Joujou, might seek to act in breach of the Third Receivership Order within the jurisdiction, if no such order is made. Fourth, in my view, there are good arguments for saying that the reasoning in Masri (No. 4) does not apply to receivership orders or injunctions of this kind, where the director or officer is named in the order, not in any third-party capacity, but because he is the directing mind or controlling organ of the corporate defendant or judgment debtor, and the person through whom any breach of the order will be committed by the corporate defendant/judgment debtor. It is not that such a person is the alter ego of the defendant. Rather, he is the person who, under the rule of attribution applicable to the injunction and any contempt proceedings under RSC Order 45, rule 5, for breach of the order, is the person whose acts or omissions are, for this purpose, to count as the acts or omissions of the company (Footnote: ³⁷). As Mr. Salzedo submitted, the order is not one that is made as against Mr. Joujou or his co-Judicial Administrators. The order is against CCOG. Mr. Joujou is merely being warned that he may be held liable to contempt proceedings if he procures the Judgment Debtors to act in contravention of its terms. It is in that capacity, and not in any third-party capacity, that the English court has personal jurisdiction over the foreign director or officer.

In my judgment, if the requirement for personal jurisdiction is satisfied, then the Third Receivership Order, including the reference to the Judicial Administrators in paragraph 18(A) of the revised order, is within the subject matter jurisdiction of the English court. That is because there is a sufficient connection here with the English jurisdiction to justify this court seeking to regulate the conduct of CCOG, acting by the Judicial Administrators outside the jurisdiction, as part of an enforcement measure ancillary to the liability and quantum judgments of the English court. Indeed, the same point was decided in the Judgment Creditor’s favour (in relation to CCOG “or its officer or agent appointed by power of attorney”) in Masri (No. 2) (Footnote: ³⁸).

As I have set out in paragraph 20 above, the revised paragraph 18(A) wording which Mr. Salzedo sought to substitute for the original wording in the Third Receivership Order refers to:

“the Defendant or its officer or director or any other person acting (either alone or jointly with others) in the capacity of, or in place of, a decision making organ of the Defendant.”

Mr. Salzedo submitted that this wording correctly described Mr. Joujou’s role because “… he stands in the shoes of the directors for taking decisions about what [CCOG] is going to do”.

In paragraphs 33 – 36 of the Naffah Affidavit, Professor Naffah states the following about the role and powers of a judicial administrator appointed under Lebanese law to manage the affairs of a company:

“33)

Once the judicial administrator is in place, ‘the immediate consequence is that all the powers of the then-acting directors are removed so that all powers are transferred to the (judicial) administrator and therefore the original directors cannot engage the company, or initiate proceedings in its name or lodge any appeal’ (Samir Abou Zamel, …)

34)

Thus, it has been ruled that ‘the appointment of a judicial administrator with the task to manage the company … triggers the withdrawal/suspension [desseisissement] of the corporate organs that were in place until such a moment’ (Cass. 3e civ., 25 October 2006, …)

35)

Such withdrawal/suspension of the existing corporate organs, and in particular of the directors of the company, is the ‘automatic consequence’ of the appointment of the judicial administrators. Once a judicial administrator has been appointed, he is ‘the only one who has the power to represent the company in court and, more generally, to carry out any legal act on behalf of the company; (R. Vatinet, ‘Administration provisoire, Juris-classeur Sociétés, p. 23, para. 68 and 69).

36)

The judicial administrator ‘is a manager of the company who replaces the legal organs of direction of the company in the framework determined by the judge. In other words he is the legal representative of the company by virtue of a judicial decision’ (Samir Abou Zamel …).”

Professor Slim agrees with this description in material respects.

However, Professor Naffah goes on to express the view that a judicial administrator is “an officer of the Lebanese Courts”, and that this means that he “is to be considered as an organ of the Lebanese judiciary and consequently the Lebanese state itself”.

At paragraph 48, he states:

“Thus, in respect of the handling of the corporate crisis, the judicial administrator, as a court officer, exercises directly a public function, and he is specifically empowered to exercise the elements of the public authority. These are sovereign acts of the Lebanese Court.”

Professor Slim does not agree with this analysis that a judicial administrator is an emanation of the state, nor that his acts are “sovereign acts of the Lebanese Court”. At paragraph 4.27 of his expert report, he expresses the following views:

“4.27

The power of the judicial administrator derives from the Court that appointed him. But he cannot be considered as the emanation of the public authority, i.e. the State, for several reasons:

4.27.1.

First, the emanation of a public authority is a person/body who/which provides a public service under the control of government.²⁷. The judicial administrator has no public authority and does not provide a public service.

4.27.2.

Second, the judicial administrator is not paid by the Court or by the State or by any public authority. He is paid by the Company and the Court specifies the level of his fees.

4.27.3.

Third, if the judicial administrator was to be considered as the emanation of the public authority, the State should then be liable for any negligence from his part.

But this is not the case neither [under] Lebanese Law nor under French Law. On the contrary, whether under Lebanese Law or under French Law the judicial administrator is personally liable in case of negligence.

It follows that I am not in agreement with my colleague Professor Georges Naffah that a judicial administrator can be considered as an ‘organ of the Lebanese judiciary and consequently the Lebanese State itself’ (para. 43) ….

4.27.4.

Fourth, there is a specific category of persons in France known as ‘citizen in charge of public service’. This category includes persons who accomplish a mission recognized as a general interest mission by exercising the prerogative of the public authority. The French Cour de cassation ruled that a receiver acting in insolvency proceedings does not belong to this category. Given that, as stated by my colleague Professor Georges Naffah, the ‘legal nature of the functions of the provisional administrator are probably not very different from those of a judicial administrator acting in insolvency proceedings’ (receiver or trustee) (para.44), it must be accepted, in accordance with the aforementioned judgment of the French Cour de cassation, that a judicial administrator is not even a ‘citizen in charge of a public service’, particularly since there is also an important distinction between an administrator acting in insolvency proceedings (where he has a broader duty to consider the interests of creditors) and a judicial administrator acting in order to resolve an internal corporate issue (where he is simply acting in the interests of the company).

4.27.5.

Fifth, the judicial administrator, as stated by Mr. Samir Abou-Zamel, ‘is not the agent of the Company because he is appointed by Court and is not further the agent of the Court because he does not carry out any legal acts for the interest of the Court. In our view, the correct answer is that the judicial administrator should be considered as a company’s director who replaces the legal managers of said company within a framework established by the Court, i.e. as the Company’s representative appointed by virtue of a judicial decision’.²⁹. This view is not far from that of the French scholar Charles LAPP who considers that ‘the administrator appointed by a court decision is an agent of the Company, despite the fact that he is enabled by the Court that invests him with his powers’.³⁰.

²⁷

‘Emanations of the state’, were defined by the European Court of Justice in Foster, A. and others v. British Gas plc, Case C-188/89, [1990] as ‘a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the state, for providing a public service under the control of the state and has for that purpose special powers beyond that which result from the normal rules applicable in relations between individuals.’….

²⁹

S. Abou-Zamel, op. cit., p. 28 ….

³⁰

Charles LAPP, op. cit. p.793 ….”

For the purposes of this application (and without finally determining the matter), I consider the analysis of Professor Slim to be preferred. In the context of section 14(2) of the State Immunity Act 1978, I do not characterise the Judicial Administrators, when discharging their functions as such, as doing so in the “exercise of sovereign authority”. Even if their status could be so characterised, immunity would not in any event be attracted under the Act since the acts of the Judicial Administrators relate to commercial activities, rather than the exercise of any sovereign authority on behalf of the Lebanese State: see Kuwait Airways Corporation v Iraqi Airways Co (Footnote: ³⁹) and Kuwait Airways Corporation v Iraq Airways Co (Footnote: ⁴⁰).

Accordingly, I see no reason at this stage, on the grounds of alleged state sovereign immunity, not to make an order referring to the Judicial Administrators. In my judgment, the Judgment Creditor has strong grounds for arguing that the principle is not applicable.

Irrespective of whether the Judicial Administrators are actually agents of the Judgment Debtors, it is clear from the evidence of both Professor Naffah and Professor Slim that they, and, in particular, Mr. Joujou (who has been entrusted with the management of the Judgment Debtors) are the persons who have power, according to Lebanese law, to carry out any legal act on behalf of the Judgment Debtors, and who, in place of the directors, exercise all the decision-making and management powers and functions of the directors (Footnote: ⁴¹). Accordingly, they are the persons whose acts and omissions, for the purpose of the First, Second and Third Receivership Orders (and the other orders of the English court), are to be counted as the acts and omissions of the Judgment Debtors in accordance with the attribution rules referred to in Meridian (supra).

The approach to the exercise of the court’s powers to make an injunction where there is a suggestion that compliance with its requirements will involve incrimination under another system law is a “flexible discretionary one”; see per Tomlinson J (Footnote: ⁴²), citing Brannigan v Davison (Footnote: ⁴³) and Morris v Banque Arabe et Internationale d’Investissement (Footnote: ⁴⁴).

Tomlinson J’s approach to the orders of the Lebanese Court was directly approved by the Court of Appeal on CCIC’s (unsuccessful) application for leave to appeal against his judgment (Footnote: ⁴⁵).

On the basis of the evidence before me, (including the Lebanese expert law evidence), I assess the real risk of any criminal, civil or professional sanctions being imposed on Mr. Joujou (or his co-Judicial Administrators) as a result of the orders of the Lebanese Court as being very small indeed.

In coming to this conclusion, I take into account the order of the Lebanese Court made on 7 January 2011, following the application of Mr. Joujou dated 17 December 2010 (and post-dating the hearing before me). This provided:

“The Judge of Urgent Matters

Having examined and considered the five matters brought forward in the last petition submitted by the Judicial Administrator dated 17 December 2010,

And in accordance with previous orders made by this Court in this file,

Decides:

To direct the Judicial Administrator to continue taking all steps in order to preserve the rights and interests of the Company, including those relating to the Masila oil concession, in particular the lifting and sale of oil and nomination of vessels, such steps to be taken before all authorities and officials, including administrative, judicial and arbitration bodies.”

My reasons for assessing the risk as very small may be summarised as follows:

For the above reasons, I refused the application by Mr. Joujou and the Judicial Administrators to discharge the Third Receivership Order insofar as it affected them, and continued the Third Receivership Order in its revised form, including a penal notice which expressly referred to Mr. Joujou.