Nopporn Suppipat & Ors v Nop Narongdej & Ors

The First Claimant (Mr Suppipat) is a successful Thai businessman who founded Renewable Energy Corporation Company Limited (REC) in 2006 and Wind Energy Holding Company Limited (WEH) in 2009. He was co-CEO and a Director of WEH until 15 December 2014. The Sixteenth Defendant (Khun Pradej) is a co-founder of WEH.

Both REC and WEH are Thai companies. Mr Suppipat held an interest in 97.94% of the shares in REC through the Second Claimant (Symphony), the Third Claimant (NGI) and the Fourth Claimant (DLV) (together, Mr Suppipat’s Companies). REC owned approximately 59.46% of the shares in WEH (the Relevant WEH Shares), a successful company involved in the development of wind farm projects in Thailand.

The Second Defendant (Ms Collins) was co-CEO and then CEO of WEH between September 2014 and December 2020. The Third Defendant (Khun Thun) was the former CFO, former Deputy CEO and a former Director of WEH, and the former Managing Director of REC. The Fourth Defendant (Mr Lakhaney) is the former Head of Corporate Finance and a former Director of WEH. Together, the Second to Fourth Defendants will be referred to as the WEH Managers. The Fifth Defendant (Ms Siddique) is Mr Lakhaney’s wife.

Ms Collins is the beneficial owner of the Sixth Defendant (Colome), a company incorporated in the British Virgin Islands (BVI). Khun Thun is the beneficial owner of the Seventh Defendant (Keleston), a company incorporated in the BVI. Mr Lakhaney is the beneficial owner of the Eighth Defendant (ALKBS), a company incorporated in Delaware.

The Tenth Defendant (SCB) is the third largest commercial bank in Thailand and WEH’s main lender. It was established by royal charter and its largest single shareholder, owning approximately 23% of SCB’s shares, is the King of Thailand. The Eleventh Defendant (Khun Arthid) was CEO of SCB at the material time, as well as a board member (April 2015-present), Vice-Chairman of the Executive Committee (ExCom) (April 2015-July 2016) and President of SCB (July 2016-February 2019). The Thirteenth Defendant (Khun Weerawong) is a non-executive director of SCB and an employee (and co-founder) of Thai law firm Weerawong, Chinnavat & Partners (WCP).

The First Defendant (Khun Nop) is the owner of Fullerton Bay Investments Limited (Fullerton) and KPN Energy Holding Company Limited (KPN EH) (together, Khun Nop’s Companies). His family owns a group of companies known as the “KPN group”. The Seventeenth Defendant (Khun Nuttawut) is a business associate of Khun Nop and former CFO of the KPN group.

The Fourteenth Defendant (Dr Kasem) is the father of Khun Nop. The Fifteenth Defendant (Madam Boonyachinda) is Khun Nop’s mother-in-law.

The Ninth Defendant (Golden Music) is a company incorporated in Hong Kong. Madam Boonyachinda claims to be its beneficial owner, but it is alleged by the Claimants that the beneficial owner is instead Khun Nop.

The Twelfth Defendant (Cornwallis) is a company incorporated in Belize. Madam Boonyachinda claims to be its beneficial owner, but it is alleged by the Claimants that since June 2018 it has been beneficially owned by Khun Nop, and before June 2018 (at least) it was owned by Khun Arthid.

Prior to mid-2015, Mr Suppipat was, as I have stated, the ultimate beneficial owner of a very valuable majority stake (59.46%) in WEH, held through REC. The other main shareholders in WEH were another Thai individual, the sixteenth defendant Khun Pradej Kitti-Itsaranon (Khun Pradej), and companies and individuals (all Thai) associated with Khun Pradej, who held a ‘blocking’ stake of in excess of 25% of WEH. By June 2015 Mr Suppipat’s entire shareholding in REC had been transferred to his companies Symphony, NGI and DLV. He gave evidence and I accept that the purpose of these companies was “to hold [his] REC shares” (Footnote: ¹).

As mentioned, WEH is involved in the development of wind farm projects and it has and had (certainly prior to December 2014) a very valuable wind farm business in Thailand. In Thailand, private wind power projects can only sell electricity to the Electricity Generating Authority of Thailand (EGAT), a state-owned company. Prospective companies bid for and, if successful, enter into a power purchase agreement (PPA) with EGAT. The PPA sets out the terms under which EGAT agrees to purchase and the project company agrees to sell the electricity generated by the wind farm project. It also defines the payments that will be made for the project’s electricity production.

PPAs usually provide for or envisage 3 key dates: (i) the Commercial Operation Date (COD) on which the project is operational and generating electricity; (ii) the Scheduled Commercial Operation Date (SCOD) on which the COD is scheduled to occur (or else, after a grace period, EGAT charges lateness penalties); and (iii) a Long-Stop Commercial Operation Date (LSCOD) by which the COD has to occur, or else the PPA is automatically terminated. The WEH Managers argued that, on the basis of Article 5 of an Order of the Energy Regulatory Commission of Thailand (ERC) dated 27 March 2012, only one six-month extension to the SCOD is permitted under Thai law. Such an extension would also result in the extension of the LSCOD. In cross-examination, Mr Suppipat maintained that a second extension would be granted if the applicant could show good reason for requesting it.

A fundamental assumption for any wind farm project is the amount of wind that can be expected at the project site. Terms such as “P50” and “P75” explain the likelihood of a wind farm producing a given level of electrical energy. “P50” denotes that there is a 50% probability that the electricity generated will be above a specified amount (and that there is a 50% probability it will be below that amount). “P75” denotes that there is a 75% probability that a specified level of generation will be achieved. “P90” denotes a 90% probability.

In late 2014, two of WEH’s wind farm projects were operational, namely First Korat Wind (FKW) and KR Two (KR2) (of which WEH’s effective ownership was 45%), although it is fair to say that both projects were experiencing a degree of underperformance compared to what had been predicted by modelling - approximately 15-20% below the P50 levels of production which had been predicted prior to construction. Further, there were some issues with the wind turbine foundations. As a result, a curtailment strategy was devised by which the projects would operate at a reduced capacity so as to avoid a total shutdown. The foundation issues ultimately required substantial repairs to 81 of the 90 turbines. (Footnote: ²)

WEH also held a minority 34.16% stake in the Khao Kor project through a company called Sustainable Energy Corporation Ltd (SEC) (Footnote: ³) and a majority 75% stake in the Watabak Wind project (Watabak). Both of these projects were under development, but Watabak was the next one intended to be made operational. There is no doubt that Watabak had the potential to be a very valuable project indeed as it geared up for construction towards the end of 2014:

Additionally, by the beginning of November 2014 five further WEH projects, namely Krissana Wind Power, K.R. One, K.R.S Three, Theparak Wind and Tropical Wind, were in development (the Future Projects). Whilst they had each been granted a PPA by EGAT, they were all at a very early stage of planning. Each project required the creation of development plans and teams; as well as substantial funding and the securing of land rights. Project financing had not yet been secured. (Footnote: ⁴) Again, however, they clearly had potential to be very valuable projects.

Because these projects had the potential to be very profitable, WEH also had the potential for a very successful IPO and SCB was in pole position to finance WEH, with SCB looking at this time to increase its project financing in the renewables sector. On 11 November 2014 SCB’s ExCom accordingly approved lending in principle to Khao Kor and the Future Projects, to cover 100% of the debt required by each project. SCB was committed to WEH’s projects and WEH’s future looked very bright at this time.

It is a fact that private placements of WEH shares had taken place at THB 380 per share in or around March 2014 and at THB 550 and 570 per share in August 2014, against the background of general buoyancy in the Thai stock market. (Footnote: ⁵)

In 2014, Mr Suppipat and WEH accordingly began working towards what was anticipated to be a lucrative IPO of WEH’s shares. The WEH Managers were central to this process. In this regard, Mr Lakhaney of WEH emailed various individuals at Morgan Stanley on 4 July 2014 following a meeting, stating: “As discussed we are in a position where we are looking to start streamlining the IPO process and further decide how we want to proceed…”.

In July 2014, Bank of America Merrill Lynch (BAML) provided a “preliminary” pre-money equity valuation for WEH for June 2015 in the very substantial sum of THB 65-93 billion (USD 2.0-2.8 billion). Similarly, in January 2015, Morgan Stanley provided a range of pre-money equity valuations for WEH for August 2015 of THB 46.6 billion, THB 75.5 billion and THB 89 billion and a target post-money valuation of as much as THB 100 billion (being a valuation of USD 2.4 -3.1 billion). At this stage therefore there is no question that WEH was viewed as a very lucrative and successful business.

Prior to his involvement with REC and WEH, Mr Suppipat was a director and shareholder of Griffon International Holding Limited (Griffon). In or around 2011-12 a dispute arose when a fellow Griffon director and shareholder, Mr Bundit Chotvittayakul (Khun Bundit – not to be confused with “Khun Bandit” referred to below), among others, accused him of embezzlement. In Thailand’s Court of First Instance, Mr Suppipat was convicted of 13 counts of embezzlement and sentenced to 78 months’ imprisonment (Footnote: ⁶). The Thai Court of Appeal upheld the convictions but reduced his sentence to 56 months and he was ordered to repay Griffon (Footnote: ⁷). The case was appealed further to the Supreme Court of Thailand.

Mr Suppipat eventually settled his dispute with 4 shareholders of Griffon, but not Khun Bundit. He exited Griffon in 2012.

When WEH began to consider an IPO in 2014, Mr Suppipat decided to attempt to settle with Khun Bundit so as to dispose the charges against him (Footnote: ⁸). However, Khun Bundit refused to accept Mr Suppipat’s offer of settlement, leading Mr Suppipat to secure the assistance of Commander Parinya, a former military man, as a “mediator” to “try to apply pressure on Khun Bundit” (Footnote: ⁹). It was ultimately this altercation which led to criminal charges being filed against Mr Suppipat. (Footnote: ¹⁰)

Eventually, Mr Suppipat agreed to pay Khun Bundit THB 120min exchange for the withdrawal of the embezzlement complaints. They were withdrawn on 26 August 2014 and as a result the right to prosecute the offence was extinguished under Thai law.

However, on 1 December 2014, Mr Suppipat was charged with lèse-majesté (the offence of insulting the King, Queen and Heir to the Throne) under Article 112 of the Thai Criminal Code and other crimes. Mr Suppipat fled Thailand on 30 November 2014 after a tip-off in anticipation of the charges. Mr Suppipat claims he is innocent of the charges but accepted in cross-examination that they are potentially linked to the dispute with Khun Bundit. He is now resident in France, having been granted political asylum there in June 2015.

Mr Suppipat’s flight from Thailand was reported in the Bangkok Post on 1 December 2014. In view of their role as WEH’s funders, it was discussed on the same day at a meeting of SCB’s Risk Management Committee.

A meeting of the SCB ExCom then took place on 2 December 2014. The resolution of the meeting records that the committee expressed concern that Mr Suppipat’s arrest warrant might affect WEH’s electricity generating licences since “the Energy Regulatory Commission regulations state that energy business operators are required to never have been sentenced to prison by a final judgement of imprisonment.” ExCom was concerned that “[i]f Mr. Nopporn Suppipat is sentenced to prison, the company’s energy generation licence may be revoked.”. It was therefore resolved that consideration of credit facilities for new WEH wind farm projects would be suspended pending “further clarity in the new executive structure”. A presentation for the meeting was also prepared by SCB’s Capital Markets Division (CMD) entitled “Issues related to K. Nopporn Supapipat [sic]”, setting out under the heading “Corporate Action” various “action[s] for continuing operation” including adding to or changing the directors of WEH and REC.

By an email dated 2 December 2014, sent to each of Mr Lakhaney, Ms Collins and Khun Srisant Chitvaranund (Khun Op) (the latter being a childhood friend and advisor of Mr Suppipat), Khun Thun explained: “banks… want to put everything on hold due to potential reputational risks issue with their board of directors. This will definitely have implications on Watabak and Khao Kor on different degree … Watabak COD will delay for sure ... For Khao Kor, the project might survive”.

As Anucha Laokwansatit (Khun Anucha) (of SCB) explained, the lèse-majesté charges would have been a “major point of concern” for any bank in Thailand considering entering into a lending transaction with a company which had an association with Mr Suppipat (Footnote: ¹¹). Piphob Veraphong (Khun Piphob), Mr Suppipat’s Thai tax solicitor and Partner of LawAlliance Limited, considered that “It was public knowledge that the Thai royal family owned shares in SCB, so it would not have been permissible for SCB to deal with anyone charged under Section 112, and that if SCB did not want to lend funds to Mr Suppipat’s companies then none of the other Thai banks would be willing to do so either” (Footnote: ¹²). The WEH Managers similarly gave evidence regarding the impact of the charges on banks’ willingness to finance WEH (Footnote: ¹³). SCB’s stance was accordingly very important.

Mr Suppipat accepted in cross-examination that, immediately after his criminal charges, SCB and “all other Thai banks”, as well as international banks, (Footnote: ¹⁴) became unwilling to provide finance to WEH (Footnote: ¹⁵). He also accepted that, within days of his flight from Thailand, he realised that this stance of the Thai banks posed serious difficulties for WEH and its projects while he remained an indirect shareholder of REC. He understood as a result that either control of WEH had to change by the sale of his shareholding in REC or WEH would have to sell off its projects for them to remain viable, lest WEH “wither on the vine”. (Footnote: ¹⁶) He concluded: “I had to sell [my shares in REC]” (Footnote: ¹⁷).

Indeed, the fallout from the lèse-majesté charge was immediate and dramatic. On 3 December 2014, at the first board meeting following Mr Suppipat’s flight from Thailand, WEH’s Chairman of the Board of Directors, General Lertrat Ratanavanich, resigned. Ms Collins was accordingly appointed as a Director of WEH to replace him. The following day, Khun Pradej’s nominated Directors resigned. On 13 December 2014, Khun Op resigned as a Director, informing the WEH Managers that his employer at the time, the Abraaj Group, had asked him to do so immediately.

On 8 December 2014, the Thai police froze Mr Suppipat’s bank accounts in Thailand, including his accounts and credit cards at SCB. WEH hired a PR consultant to try to mitigate the damage. Although WEH’s auditors, KPMG, were persuaded to remain, they only did so on condition that they would not be required to sign off any accounts from 2014 when Mr Suppipat had been associated with WEH.

On 15 December 2014, Mr Suppipat resigned his position as co-CEO and Director of WEH. From that point, Ms Collins became sole CEO. Mr Suppipat’s involvement in REC and WEH was sufficiently “toxic” (a description used by Mr Suppipat himself in cross-examination) that his name seems to have ceased to be used in day-to day emails and by May 2015 he was being referred to as ‘our friend’, with most communications taking place via Chettaya Pongpitak (known as Khun Lek), the former personal assistant to Mr Suppipat and (now former) WEH employee.

Mr Lakhaney summarised the state of affairs and issues facing WEH as a result of the charges against Mr Suppipat in an email to Deloitte on 23 December 2014: “Through the board and then through resignations, we have removed Nick (Footnote: ¹⁸) from all boards, executive roles, committee memberships, etc…. However, given ‘reputational risks’ as [REC] owns 60.9% of WEH and Nick owns the majority of REC, no bank will let us draw down any money, and no domestic firm will start a relationship with us. The only solutions are (i) Nick situation gets resolved — not going to happen; or (ii) Nick is no longer a shareholder.”

As such, with the assistance of the WEH Managers, Mr Suppipat began to look for an investor to buy his stake in REC. One difficulty was that, under Thai law, WEH had to remain at least 50.1% owned by Thai shareholder(s). Mr Suppipat trusted the WEH Managers to continue to run WEH in his best interests in his absence and continued to remain in close contact with them (Ms Collins in particular). (Footnote: ¹⁹)

Khao Kor

The Khao Kor project was a casualty of Mr Suppipat’s lèse-majesté charge. In an email dated 28 December 2014, Khun Thun noted that the project would not obtain financing from “any bank” unless WEH diluted its shareholding in SEC (Khao Khor’s holding company) from 34.16% (30% if fully capitalised) to under 10%. WEH accordingly complied with this at the beginning of 2015. It had a right to buy back its shareholding by March 2015 if Mr Suppipat was out of the structure.

Meanwhile SCB took swift action. On 12 February 2015, SCB’s Credit Committee resolved to suspend further consideration of the Khao Kor Facility due to, among other things, the reputational risk associated with Mr Suppipat, and to refer the issue to its ExCom for further consideration.

On 17 February 2015, ExCom duly considered the Khao Kor Facility. SCB’s CMD prepared a presentation which noted (in light of the dilution of WEH’s holding in SEC to less than 10%) “Legal risk to this Project by having K. Nopporn (Footnote: ²⁰) as ultimate shareholder in WEH is considered minimal”. ExCom resolved to approve the Khao Kor Facility “contingent upon discussions with the Executive Committee Chairman and approval by the Chairman of the Board, Chairman of the Audit Committee and Chairman of the Nomination, Compensation and Corporate Governance Committee according to the credit approval authority regulations for potential social impact loans”.

Khun Thun emailed Ms Collins and Mr Lakhaney on 9 March 2015 explaining that there was a “hard decision to make again re Khao Kor. SCB has issue with WEH as shareholder and wouldn’t lend to the project. We have to exit completely (buy back option is acceptable) …”. Linklaters were asked to draw up a Share Purchase Agreement and a buy-back agreement.

Consistently with Khun Thun’s email, by the end of March 2015 SCB was insisting that WEH sell its remaining interest in Khao Khor. The proposal put to the EGM of WEH on 27 March 2015 was accordingly that WEH sell its remaining shares, but with a right to buy them back in December 2015. The proposal would have allowed WEH (in due course) to retain an interest in Khao Kor and would have allowed financing to have been obtained for the project. However, the shareholders (including Khun Pradej and REC, i.e. Mr Suppipat) refused to adopt the proposal (Footnote: ²¹).

FKW and KR2

Significantly, however, SCB did not suspend its existing lending to WEH’s FKW and KR2 (operational) projects. Parnu Chotiprasidhi (Khun Parnu) (WEH’s relationship manager at SCB) explained this on the basis that: (i) these were funds that had already been drawn down; (ii) SCB had already conducted feasibility studies for the projects; (iii) the projects had achieved COD and were generating power and revenue; (iv) SCB was part of a lending syndicate, which could have presented difficulties in calling default; and (v) the project companies had other shareholders (Ratchaburi and Chubu) who could be trusted to manage the projects if Mr Suppipat ceased to have an interest. However, this nonetheless demonstrates the attractiveness of WEH’s wind farm business to SCB.

Watabak

By March 2015, WEH was experiencing financial difficulties in relation to the Watabak project which did not have financing in place; construction efforts were on hold and the majority of the team working on it were made redundant. In consequence, on 26 May 2015, WEH applied to EGAT for an extension to the SCOD under the Watabak PPA. A 6-month extension was granted on 13 August 2015, such that the new SCOD date became 1 May 2016 and the LSCOD became 1 May 2017.

At the end of December 2014, Mr Suppipat set about trying to sell his REC shares. He originally sought a straight sale of the shares to an independent buyer. It is significant that by an email of 20 December 2014, Khun Thun proposed to the other WEH Managers that at that time WEH should have a valuation of US$1.8-1.9 billion (with a 25% discount). Mr Lakhaney agreed with this proposal. As will be seen, these numbers are significantly higher than the subsequent valuations of WEH put forward by the WEH Managers.

SCB produced two presentations entitled “Discussion Material” with regard to WEH in the course of their retainer for Energy Absolute, a company which was considering making an offer for WEH. It is also significant (as will be seen) that these contemporaneous, high valuations were made immediately after the lèse-majesté charge had been made:

On 19 January 2015, Khun Thun set out his thoughts on a possible management buyout: envisaging an IPO within a year and suggesting that Mr Suppipat would receive USD 503 million immediately following the sale and a further USD 407 million following the IPO, “comparing to USD 836mil in a straight deal”. It is clear that he considered that WEH remained a very valuable business.

It should be mentioned, however, that on 20 January 2015, REC sold 1.41% of its WEH shares to Thai Focused Equity Fund Limited for approximately $11 million. This price would have valued REC as a whole at about $450 million, although obviously this was only a small minority stake. In cross-examination, Mr Suppipat also explained this on the basis that this was REC in its “darkest days” and it involved an 100% upfront payment.

On 12 February 2015, there was an internal exchange of emails at SCB in respect of the value and acquisition of WEH, in which Khun Chuwinya Chittikuladilok asked “IB team” “to prepare information and slides” regarding “1) Valuation justification – for the acquisition value 100% at [50,000-60,000]MB [c USD $1.5-1.7b] … ” (the next section of the email is redacted) ahead of a “special CC/special EXCOM next week”. The attached SCB document, headed “Acquisition Financing & Exit Strategies Discussion Material”, is dated 16 February 2015. The vast majority of the presentation is redacted.

Following 35 potential bidders signing non-disclosure agreements with REC, 9 Letters of Intention (but no binding offers) were submitted by 15 June 2015, as reflected in a spreadsheet entitled, “Summary of bidding status June 2015 v2.xlsx”, which was emailed from Mr Lakhaney to Khun Thun.

The WEH Managers expressed interest in progressing the offers from Sun Edison Inc (Sun Edison), EREN Development (EREN) and Equis Fund Group (Equis):

The bidding status spreadsheet also illustrates how two of the interested purchasers had dropped out due to “reputational” risk. In particular, B Grimm (which had offered USD 384 million after completion of due diligence) had written a letter terminating their involvement in negotiations on 15 May 2015, “based on results of [their] feasibility study” which raised a “number of complicated factors and technical restrictions” which made it “impossible” for them to “organise the transaction in the way which [they] would have generally been capable to proceed”. This included the fact they had not been able to trace the funds which Mr Suppipat had used to buy shares in REC and reference was made to the Khun Bundit embezzlement charges. In cross-examination however, Mr Suppipat insisted that he had never received inquiries from B Grimm about the funds he used to acquire the REC shares.

Further, Gulf, a company which had submitted a letter of interest in December 2014 and later sent through a number of due diligence questions, is said in the spreadsheet to have made “[n]o formal pricing offer after [due diligence] but verbal[ly] indicated [it] is under THB 300 per WEH share”.

In March/April 2015, Mr Suppipat started to consider using a nominee structure whereby a third party would acquire his REC shares and work towards an IPO (Part A) with Mr Suppipat retaining the right to repurchase his REC shares at a later stage through the exercise of a call option agreement (COA) (Part B) (Part A and Part B, combined shall hereafter be referred to as the Global Transaction). Mr Suppipat explained in his Witness Statement that he pursued a nominee structure because the straight sale offers received “were either low in value, or complex, or involved little money upfront. They did not reflect the true value of WEH because I was seen as an enemy of the state” and he “did not urgently require the proceeds from a sale of the shares” (Footnote: ²³). In other words, the offers (which were lower than the various contemporaneous valuations) sought to take advantage of Mr Suppipat’s pariah status. I accept that evidence.

As such, on 25 April 2015, Mr Lakhaney informed the WEH Managers that he had, “Just spoke[n] to [Mr Suppipat] – seems to be focused on this nominee sale”. This is clear contemporary documentary evidence that, by the time negotiations began with Khun Nop (see below), Mr Suppipat was seeking to sell to a nominee rather than a genuinely independent buyer.

However, issues were experienced in finding an appropriate nominee. Verwaltungs- und Privat-Bank (VP Bank), a bank based in Liechtenstein, was considered as a potential nominee. In an email of 27 April 2015 to Clare Lam of VP Bank, Khun Piphob explained that:

“Basically, NS would like VPB (or affiliate) to hold shares in REC (i.e. by purchasing NS shares with a promissory note) for a while and then we will do the entire business transfer at the WEH level. …

If we cannot find a new potential buyer, we will either list REC or WEH by ourselves. In the latter case, if you cannot help NS to continue to hold shares during the listing process, a US hedge fund could replace your funds/affiliates before a listing application will be filed …

The reason why we need to talk about the listing scenario is because the potential Thai Buyer has tried to discount the value of WEH substantially – knowing that NS wants to exit. Hence, if we want to list REC or WEH by ourselves, we need to take NS out from REC first, so that WEH can complete its project finance for the new windfarm under the pipelines….”.

The possibility of a nominee structure was also canvassed with the ACO Investment Group LLC (ACO). However, in an email of 27 April 2015, Mr Lakhaney explained to Mr Suppipat and Mr Baker (one of Mr Suppipat’s lawyers) that ACO “don’t seem to be open to a ‘nominee’ fixed return type of arrangement”. At the time of his email, a meeting with VP Bank was scheduled and Mr Lakhaney commented that, “pending” their answer about acting as nominee, “I think the only option then is to get Chris [Baker] for example as a nominee. As per Op, the new board will come in so long as NS is not there, we will stay in control and buy some time and have board protection from EA, Pradej etc.” His final comment in the email was that, “At this stage, I do not see us getting a “quality” nominee that would allow for construction finance, etc. given the timeframe.” This demonstrates a clear awareness on Mr Lakhaney’s part that Mr Suppipat was focused on using a nominee despite the difficulties being experienced.

Negotiations with VP Bank ultimately failed. Khun Piphob explained in his Witness Statement that he “believe[s] this proposal did not go ahead because senior management at VP Bank believed that, upon an IPO, the bank would need to disclose to the SEC the identity of Mr Suppipat as the beneficiary of the nominee arrangement” (Footnote: ²⁴).

On 30 April 2015, Ms Collins texted Mr Lakhaney saying, “Op is not really helping is he?” and “He is v keen on Equis !!!”. Mr Lakhaney replied saying, “Same story…nominee so NS can come back in…”. Ms Collins then responded, “OMG!!! … I am ignoring the last sentence”. Ms Collins’ evidence was that she was talking about the problem of finding a quality nominee, not the issue of Mr Suppipat coming back (Footnote: ²⁵). Either way, this exchange clearly shows that Mr Suppipat was pursuing a nominee structure and that this was known to the WEH Managers.

I accept Mr Suppipat’s evidence that, having decided to pursue a nominee sale, he and the WEH Managers commenced negotiations with Khun Nop to that end in “April or early May 2015” (Footnote: ²⁶). Khun Nop’s involvement had been proposed by Khun Op, who was in fact a mutual friend of both Mr Suppipat and Khun Nop. Khun Op was also a business partner of Khun Nop through the Abraaj Group. Mr Suppipat explains in his Witness Statement that he thought that Khun Nop would be a good option “due to him being well known in Thailand, him telling me that he was very close [to] the Crown Prince (who later became King of Thailand), and because he was introduced to me by Op” (Footnote: ²⁷).

Mr Suppipat insisted in cross-examination that “Nop ha[d] never been brought in as a bona fide buyer. He is a nominee”. I accept this evidence which is consistent with the documentary evidence, which shows Mr Suppipat’s clear pursuit of a nominee structure. Khun Nop was to receive a fee by way of payment in exchange for participating as a nominee in the transaction, and for enabling an IPO at a later date when Mr Suppipat would re-acquire the shares under a call option.

The Claimants also say that, during the course of negotiations, Khun Nop and Khun Nuttawut represented to Mr Suppipat their intention to give effect to the Global Transaction, in particular to Part B as well as Part A (the Global Transaction Representations). In reliance on these representations, Mr Suppipat’s Companies sold their REC shares to Khun Nop’s Companies. As will be explained in detail, I accept the Claimants’ case.

Khun Nop’s case, in contrast, is that he never agreed to be a nominee and instead it was, in his words, a negotiation of “two deals” (Footnote: ²⁸). He says that the sale and potential buy-back deal were on two separate tracks (Footnote: ²⁹) (i) with separate advisors (Linklaters working on the REC SPAs, and Stéphane Héliot (Mr Héliot) on the draft call options, with no cross-over at all), (ii) following separate timeframes (the REC SPAs were signed before the first draft call option was even produced), and (iii) with separate documentation (the REC SPAs not referring to, or expressed as in any way dependent or conditional upon, the proposed call option) (Footnote: ³⁰).

Khun Nop asserted in cross-examination that a nominee deal was only considered for “maybe one meeting” (Footnote: ³¹), before an outright sale was envisaged. In cross-examination he said:

“I think what I recall is that on the nominee deal, the first Skype meeting with Mr Suppipat, and he suggest that he offered the deal of nominee deal, and I remember that he mentioned I have to pay him $175 million, and if we can IPO the company, he offer me $200 million. I asked him that I not understand, so is that 200 minus 175. He say yes, and I asked him whether that is a good deal. He said no, and he just laugh. That is how I recall the first meeting.” (Footnote: ³²)

I find that to be untruthful evidence.

Khun Nop said that he was “prepared to listen” to “some kind of separate discussion of [Mr Suppipat] coming back in certain conditions” (Footnote: ³³) and alleged that his criteria when considering the call option proposals were: “First … if [Mr Suppipat] get clear from all the criminal charges, including the 112; secondly, … I am not going to do anything illegal; thirdly, it has to be commercially viable to me”. (Footnote: ³⁴) I firmly reject this evidence which I consider to be untruthful. It is clear from the contemporaneous documentary evidence that, as Khun Nop knew very well, Mr Suppipat only negotiated with him on the basis that he would act as nominee.

Further, Khun Nop suggested for the first time in cross-examination that he told Khun Op over the telephone, on an unspecified date in May 2015, that he was prepared to proceed only on a straight sale basis (Footnote: ³⁵). I reject this suggestion. This was another lie of Khun Nop’s. Unsurprisingly, the alleged May telephone conversation was not put to Khun Op, who gave evidence before Khun Nop.

Ms Collins also maintained in cross-examination that this was not a nominee sale and suggested that the structure looked similar to the Equis and B Grimm deals. I reject this evidence which is contrary to the contemporaneous documentary evidence, including that of Ms Collins herself.

On 16 May 2015, Mr Suppipat emailed Khun Op attaching a presentation on the “Deal Structure” (the Deal Structure Presentation) to be discussed with Khun Nop “tmr” [tomorrow] and requesting that Khun Op “review it and let’s go through this before the meeting”. I accept Mr Suppipat’s evidence that “this deal structure was developed after [Khun Nop] accepted to be a nominee” (Footnote: ³⁶) and it followed a series of discussions during which a proposed call option was described to Khun Nop and Khun Nuttawut, prior to the Deal Structure Presentation and the 17 May Skype Call. (Footnote: ³⁷)

According to the Deal Structure presentation, the total purchase price to be paid was USD 450 million and an initial cash payment of USD 75 million was to be “recycled”. In cross-examination, Mr Suppipat said that this “recycling” would involve his borrowing from VP Bank, lending the sum to Khun Nop and then Khun Nop using the sum to pay back Mr Suppipat. Khun Nop insisted in his cross-examination that he never anticipated that Mr Suppipat (as the seller) would lend him (as the buyer) money to pay for what was being bought. Once again, I reject Khun Nop’s evidence in this respect; I consider that Mr Suppipat is telling the truth about this. The intention at this stage was that Khun Nop would borrow the remaining $100 million of the First Instalment payments.

Khun Nop’s complete lack of liquidity is consistent with the Claimants’ case that he was brought in as a mere nominee. It also demonstrates that Mr Suppipat was already aware of Khun Nop’s financial position by this point and, as such, negotiations must have already begun. Therefore, I accept the Claimants’ case that Khun Nop had already agreed to be a nominee when the Deal Structure Presentation was prepared on 16 May 2015 and I reject Khun Nop’s evidence to the contrary.

The Deal Structure Presentation includes a section entitled “Proceed Sharing and Buy Back”. This refers to Part B of the transaction – the buy-back of the shares by Mr Suppipat under a call option – with Part A being the sale of the shares. As the fee for his services as a nominee, Khun Nop stood to make an enormous USD 216.25 million as he would receive back 20% of the purchase price of USD 450 million (i.e. USD 90 million) immediately following the IPO, with a further payment to follow one year later.

Further, the Deal Structure presentation envisaged management being placed in the structure for market presentation purposes, in order to give credibility to the transaction, and to assist with raising finance, which was critical for WEH’s projects. I find also that, as will become apparent, Mr Suppipat wanted the WEH Managers in place to protect his interests in the Global Transaction.

Discussions took place about the Deal Structure one day later on a Skype call of 17 May 2015 between Mr Suppipat, Khun Op, Khun Nop and Khun Nuttawut (Skype Call). There is no contemporaneous record of precisely what was said on the call.

However, we know that on the same day, 17 May 2015, Mr Suppipat emailed the Deal Structure Presentation to Mr Lakhaney, saying he had “discussed it with Nop and Nuttawut via Skype today and they seem to like it”, and separately to Mr Baker, saying that the Presentation “reflect[s] our teleconference this morn. It’s slightly different from yours but with input from Nop’s team and ours taking into the account”. Mr Suppipat’s evidence is that in the course of these discussions Khun Nop and Khun Nuttawut: “each indicated to me that they understood the Global Transaction and accepted that the intention behind it was that, in accordance with Part B, I would be able to reacquire my interest in REC” (Footnote: ³⁸) and “They have agreed to the deal. And I presented the structure to them and they liked it” (Footnote: ³⁹). I accept this evidence and I find as a fact that, on the Skype Call, Khun Nop and Khun Nuttawut represented to Mr Suppipat that their intention was to give effect to the Global Transaction (in particular to Part B) (viz, the Global Transaction Representation) when, as their actions after this date make clear, in fact they held no such intention.

In cross-examination, Khun Nop denied that the Deal Structure Presentation was ever discussed on the Skype Call. I find that that was another lie. Indeed, this was never part of Khun Nop’s case until he gave his oral evidence, and it contradicted his pleaded case, which is contained in paragraph 53(1) of the Defence of Khun Nop and Khun Nuttawut, where it is pleaded that:

“It is admitted that on or around 17 May 2015 NS prepared or caused to be prepared a presentation setting out a proposed deal structure for discussion with NN, that NS, NN and Mr Phowborom discussed a proposed deal structure via Skype, and that NS sent the proposed deal structure to Mr Lakhaney the following day.”

Further, when asked about the profit which he would make under a call option deal, Khun Nop alleged that he “first hear[d] about the call option on the formula is after we sign[ed] the SPA”. That was another lie and it contradicted his witness statement in which he had said: “I can recall NP mentioning a call option before the signing of the REC SPAs …. I recall that before signing the REC SPAs, NP mentioned to me that there was no call option in the REC SPAs … This was good as the complicated call option that NS had been continually changing had gone away…” (emphasis added). It also contradicted his earlier evidence in cross-examination that “I think in the negotiation all along, it is always two deals”. Khun Nuttawut also gave false evidence that he did not remember having seen the Deal Structure Presentation before.

Further, it is noteworthy that the Deal Structure Presentation is the first in a range of documents which consider the Global Transaction as a whole. The Defendants’ argument that the sale and potential buy-back deals had “separate documentation” (Footnote: ⁴⁰) since the latter is not referred to in the REC SPAs is therefore inconsistent with the documentary evidence as a whole. Similarly, the idea that they followed “separate timeframes” on the basis that the REC SPAs were signed before the first draft call option was produced ignores this constant, consistent consideration of the Global Transaction as a whole.

I therefore reject the evidence of both Khun Nop and Khun Nuttawut in this regard and find that the Deal Structure Presentation was discussed by them with Mr Suppipat in the Skype call of 17 May 2015 and that, during the call, Khun Nop and Khun Nuttawut led Mr Suppipat to believe that they intended to implement the proposed structure, which included the buy-back.

On 18 May 2015, Mr Lakhaney circulated to Mr Suppipat, Mr Baker and the other WEH Managers an Excel spreadsheet table on how the transaction with Khun Nop would work (Deal Structure Spreadsheet) which, in particular, demonstrated how the Part B repurchase price would be divided between Khun Nop, Ms Collins and Khun Thun. Again, it is notable that WEH was given a substantial USD $2 billion pre-money valuation. 40% of REC would be sold to the WEH Managers and they would eventually sell that stake back to Mr Suppipat for $10m each.

In his covering email, Mr Lakhaney states:

“…A few issues we will be discussing with Linklaters tomorrow whereby I don’t think this looks like it is (i) a commercial deal that if someone external looked at they would think made sense; (ii) missing the cost of the upfront financing; (iii) tax issues in terms of an NS buyback …; (iii) attractiveness to KPN; (iv) Disclosures in an IPO – can we have a side agreement locked away not disclosed, and then NS comes back in at below market value – what happens?; (v) Need financing to repay Partners Group; (vi) How can we not sell shares when we need to pledge shares to banks; (vii) Can a Thai company / individual own Thai assets through a HK company – if they have to fully disclose this in an IPO. …”. (Emphasis added)

Ms Collins shared the concerns set out in Mr Lakhaney’s email of 18 May 2015. (Footnote: ⁴¹) She was also surprised that KPN were a potential purchaser, given that they did not have a previous track record in the energy sector (Footnote: ⁴²). This factor further supports Mr Suppipat’s evidence that Khun Nop was brought in as a nominee because he was not an appropriate candidate for a genuine, straight sale.

Mr Lakhaney’s email also shows that Linklaters provided advice regarding (amongst other things) the “NS buyback”. This also shows that the Defendants’ case - that the sale and potential buy-back deals were on two separate tracks because Linklaters worked on the REC SPAs and Mr Héliot on the draft call options “with no-crossover” (Footnote: ⁴³) - is false.

Mr Baker responded to Mr Lakhaney’s email stating: “Agree that all of your points need to be addressed”. He then offers comments on some of the points:

“[on] the first point, there really is no good answer : you have been trying to pull together a real deal with a real buyer and there appears to be no such deal on the table. I guess that I, at least, have come to the tentative conclusion that a credible commercial deal is not achievable given the position N is in. … Given this unfortunate situation, N he decided to do a deal with management and one sponsor who, together are prepared to put 75 of cash on the table. The entire balance of the price is vendor financing …. I agree that no vendor who could find a buyer would do this; but N cannot find a buyer. So the deal he is doing is quite transparently designed to deliver funding to him over the next several years, and to capture for him a significant part of the future upside through the terms of his vendor financing, and to put him in a preferred position, but with no contractual right, to repurchase all or part of his control position if that becomes politically feasible …. In addition, it would be my intention that the shareholders’ agreement in REC, Manco KPN Thai and KPN KH, and pledges would make it impossible for the Purchasers to do anything other than to IPO the company, with a primary issuance of new shares … In my mind there is no buy back deal; I expect any legally binding buy back or call deal would indeed have to be disclosed. But the Purchasers also do not have any kind of liquidity – either at the WEH level, the REC level or even the Purchaser vehicle level without the Seller’s consent, and the mutual agreement of the Manco shareholders and KPN. I would make the argument that the absence of liquidity justifies a significant discount on the vehicle shares, as compared to the WEH listed share equivalent value. N’s control over their liquidity is one of the reasons he has accepted a very low up front cash payment and all the vendor financing. …”.

It is plain from this exchange that Mr Lakhaney and Mr Baker did not consider the proposed transfer to Khun Nop’s companies to be a commercial deal; Khun Nop, with his lack of liquidity, was clearly not a genuine, competitive buyer. Further, it is notable that Ms Collins and Khun Thun were copied into the email exchange – as such, they too must have been aware that this was not a commercial deal.

On 20 May 2015, Mr Lakhaney emailed Mr Shahzad Lalani, a banker at the Bank of America, explaining that the deal with Khun Nop and KPN “could move very quickly as they will not do DD” (i.e. due diligence) and, as Mr Lakhaney stated in cross-examination, “[t]hey weren’t haggling on valuation”. Again, that is obviously because this was a nominee deal. Both Ms Collins and Mr Lakhaney described it as a “friendly deal” in cross-examination and Mr Suppipat explained in his Witness Statement that, “[a]s far as I was aware, when the REC SPAs were entered into, Nop and Nutt had not undertaken any due diligence on the transaction, which was consistent with my expectations because Nop would only own the shares until they were sold back to me and that the price was below the true market value” (Footnote: ⁴⁴). I accept that evidence which is consistent with Mr Baker’s contemporaneous email recited above.

Khun Nuttawut alleged that an external lawyer advised Khun Nop verbally about the merits of the sale, but there is no documentary evidence to support this suggestion which, again, I find to be false.

On 22 May 2015, Ms Collins sent a 100-page WEH document called a “Management Due Diligence Memorandum” to Khun Nop and Khun Nuttawut. Additionally, Ms Collins alleged in cross-examination that Khun Nop had access to a “data room [that] was full of vendor due diligence packs” which had already been compiled by the WEH Managers (Footnote: ⁴⁵) and contained “all of the due diligence from … legal, project, technical and financial” (Footnote: ⁴⁶). Whether it be true or not that he potentially had this access, neither Khun Nop or Khun Nuttawut mentioned these documents when asked about due diligence in cross-examination. Khun Thun said that he was unaware whether Khun Nop and KPN accessed the data room. I find as a fact that they did not.

Khun Nop alleged in a related arbitration that he had relied upon a Deloitte report regarding “what should be the right number to acquire this company and what’s a reasonable price” and at paragraph 23 of his Second Witness statement in this action he said that he had been briefed by Khun Nuttawut who had himself received draft reports from Deloitte. In cross-examination, both Khun Nop and Khun Thun alleged that, prior to the signing of the SPAs, Khun Nuttawut had said that Deloitte had raised “no red flags”. Khun Nop admitted, however, that he never saw any such Deloitte report himself; that he was now aware “that there was no Deloitte report until September” (Footnote: ⁴⁷); and that Khun Nuttawut’s belief that there was such a report was a “misunderstanding” on his part (Footnote: ⁴⁸).

Khun Nuttawut sought to suggest in his initial evidence in these proceedings that Deloitte “continued” their due diligence after the REC SPAs had been signed (Footnote: ⁴⁹) (implying that they had begun it before signature) but was forced to accept in cross-examination that “[n]o due diligence” had been conducted by Deloitte “before the SPA was signed”. I consider that that is the true position and that any suggestion to the contrary is untruthful. Indeed, he was compelled to concede this in his Fifth Witness Statement, served after the trial had begun, by reason of the contemporaneous documents. In that statement, confronted by the contemporaneous documents, he was compelled to admit as follows:

“2.

I make this statement to correct an inaccuracy in my first witness statement. In the final sentence of paragraph I 9, I wrote that "Deloitte continued their due diligence after the REC SPAs were signed. .. " The implication was that Deloitte began its due diligence on the purchase of REC before the REC SPAs were signed.

3.

My solicitors have now drawn my attention to:

1 an email from Thun Reansuwan to Emma Collins and Aman Lakhaney on 23 July 2015 in which Khun Thun indicates that Deloitte have "just started" a financial due diligence report;

2 an email exchange between Khun Thun and Deloitte in August 2015; and

3 a diary note for a "Kick-off meeting: Financial Due Diligence" (to which I was invited) on 27 August 2015.

4.

Now that I have read those documents, it is clear to me that I was mistaken in my recollection. I take this opportunity to correct the record”

The contemporaneous documents are as follows:

It was Khun Thun’s evidence that these communications were only about a “final”, “detailed” report and that Khun Nuttawut told him he had received a preliminary report from Deloitte before the conclusion of the REC SPAs. I firmly reject that evidence which I consider to be untruthful. There is no documentary evidence of a Deloitte report, whether preliminary/initial or otherwise, having been produced prior to September 2015 and I find that there was not one.

I therefore reject any suggestion by Khun Nop or Khun Nuttawut that they carried out any due diligence on the REC SPAs. They were proceeding on the basis that this was a nominee sale, such that the purchase price did not much matter (indeed, as has been noted, part of it came from Mr Suppipat himself).

A meeting between the WEH Managers, Khun Nuttawut and Khun Nop took place at KPN’s office on 20 May 2015. This is said to be the first time that Ms Collins met Khun Nop. Ms Collins states in her Witness Statement that she asked Khun Nop and Khun Nuttawut if the transaction was a “real deal” and was “assured” that it was (Footnote: ⁵⁰). Additionally, Ms Collins alleges that, “[a]fter the meeting, Mr Lakhaney received a phone call from [Khun Op] indicating that [Khun Nuttawut] and [Khun Nop] had been offended by the question”. In cross-examination, Khun Op confirmed that he had made such a call after the meeting; Khun Nop “had informed [him] that this nominee thing [had] to be a secret among [them], nobody need to know” (Footnote: ⁵¹).

On 21 May 2015, Ms Collins emailed Mr Hessmert, Mr Suppipat’s butler, with a table setting out the “pros” and “cons” of the proposed transactions with (i) Equis and (ii) KPN. At this time, Ms Collins was still working on the Equis deal and, as Mr Suppipat agreed in cross-examination, her email provided a “very clear steer” that the Equis offer was preferable. Regarding Equis, Ms Collins stated that the pros included that it was a “[c]ommercial deal” and involved “[r]eal skin in the game”. The cons included a “[l]oss of control until Equis exit”. Regarding KPN, the pros included “[n]o real skin in the game”. The cons included that there is “[n]o real commercial deal” and “[n]o power experience”. This is an important email. It shows that, contrary to her evidence, Ms Collins knew that the deal with Khun Nop was indeed a nominee deal as he had no real skin in the game. Indeed, she had sufficient information on the Khun Nop deal to send Mr Suppipat a comparative evaluation of it.

Consistently with this finding, on 2 July 2015, Mr Suppipat emailed Ms Collins and explained, “When I met with [Khun Nuttawut] a few days ago he has made it clear that KPN is not an investor but they came in to help”. This again illustrates that Khun Nop was a nominee and that this was not a genuine commercial sale, a fact which I find was known to Ms Collins, despite her evidence to the contrary.

Mr Suppipat accepted that the WEH Managers warned him off the deal with Khun Nop (Footnote: ⁵²) and that, despite Ms Collins’ advice, he told Ms Collins to “pull” the Equis deal. Mr Suppipat sets out in his Witness Statement that:

“The reason that I entered into the deal with Nop was because the deal included a call option. If I had not sold the shares to Nop in 2015 with the understanding that the call options would be entered into, I would have made a different deal with another person willing to agree to a sale structured with a buy back option. I would only have reluctantly agreed to a straight sale if I had no other option.” (Footnote: ⁵³)

I accept that evidence.

The progress with the Khun Nop deal was discussed in a text message exchange on 27 May 2015 between Ms Collins and Mr Lakhaney. Ms Collins said it is “Good news [that Khun Nuttawut is] coming into [the] management team” and, in response to a question from Ms Collins about his meeting, Mr Lakhaney said that they have “Sorted the structure so productive I think”. This contradicts Mr Lakhaney’s suggestion that he was kept on the periphery of the Global Transaction negotiations.

The same day, Mr Stephen Nash of Baringa Partners, a London-based management consultancy, sent a further email to Ms Collins, subject: “forecast tool and models”, setting out a Baringa valuation of 100% of WEH of US$1.3 bn up to US$1.5 bn (“If we add another ~17% for TV [terminal value]”). WEH was still considered to be extremely valuable.

The following day, 28 May, Mr Lakhaney produced a “Sale Structure” presentation, and accompanying spreadsheet; and Khun Nop and Khun Nuttawut were provided with the draft SPA. The Sale Structure presentation sets out a draft structure in which it is stated (among other things) that: (1) Ms Collins and Khun Thun would form a part of the structure; (2) USD 100 million would be borrowed by a foreign bank; (3) prior to the transaction, the REC and WEH shares held by Ms Collins, Khun Thun and Mr Lakhaney would be sold back to Mr Suppipat.

On 29 May 2015, Khun Piphob emailed Khun Nop, Khun Nuttawut, Khun Op, Khun Luk and Khun Sutthipong of Linklaters and the WEH Managers. Khun Piphob stated that he had just had a telephone discussion with Mr Suppipat, whom he said wanted to change the shareholding ratio in the structure circulated by Mr Lakhaney on 28 May 2015. Further, Khun Piphob specifically referred to how “[a]fter the IPO, a call option will be exercised to purchase, from KPN SPV 2 BVI, the 49.99% REC shares and X% KPN SPV 1 (Thailand) shares”, and he discussed how to do this in a way “[t]o avoid pricing disclosure”.

Mr Lakhaney replied stating, “We should discuss but I do not believe a call option can be part of the structure i also don’t think the below will get him around price disclosure”. Despite this observation, it was Mr Lakhaney’s own evidence that the call option remained part of the overall deal structure until “sometime in late September [2015]” (Footnote: ⁵⁴). It was Khun Piphob’s view that Mr Lakhaney “just said that he did not agree with the email on the 49.99%. He did not think that it work, but it doesn’t mean that he disagree or extend that conclusion to cover subsequent discussion on the call option” (Footnote: ⁵⁵).

In a further email to Khun Luk and Khun Sutthipong of Linklaters and Mr Lakhaney, which was sent later the same day (29 May 2015), Khun Piphob stated that Mr Suppipat also asked whether the mere grant of call options to purchase would require any disclosure to the Securities and Exchange Commission and Stock Exchange of Thailand, or if the disclosure requirement is only upon the ““exercise” [of the option] for the tender purpose”.

In response, Linklaters provided the following advice:

“Generally, a call option is not regarded as an acquisition of the shares (or voting rights over shares) underlying it, assuming that the option grantee does not have any rights to such shares (whether voting rights, rights to dividends, returns or any other interest). If the call option comes with the right of the option grantee to direct how the option shares are voted, the call option itself could be regarded as an acting in concert behaviour which results in a mandatory tender offer obligations of the parties involved.”

Khun Piphob forwarded Linklaters’ advice to Mr Suppipat.

In an email sent the following day (30 May 2015) to Khun Piphob (to which Mr Lakhaney was again copied), Linklaters provided a follow-up clarification to Khun Piphob’s question regarding the call option, stating:

“To clarify my response, a call option (which does not give the option grantee any rights to the shares before the option is exercised) does not trigger any reporting requirement until it is exercised. However, if the option in place before the IPO, … [it would] need to be disclosed in the IPO documents”.

That advice was not copied or forwarded to Khun Nop or Khun Nuttawut.

Khun Piphob did not refer to this email in his Witness Statement. In cross-examination, he said of the email: “it is not the end of the story. We explore with Linklaters one or two days after that. So we know the solution, even if there is a room of interpretation, but we have chance to implement, right” (Footnote: ⁵⁶). In his written evidence he recalled that, after the date of these emails, he attended between 3 and 5 meetings, as well as phone calls, with Linklaters and Mr Lakhaney to discuss how the Securities and Exchange Commission and Stock Exchange of Thailand would view the transaction (Footnote: ⁵⁷) - evidence which was not challenged in cross-examination.

When Mr Suppipat was asked whether he knew that the call option would have to be disclosed in the IPO, he said:

“I think I did, my Lord…But I also believe that there is a way around this that can still allow me to pursue this option without breaking the law, and that was all along the thesis of the approach.” (Footnote: ⁵⁸)

I accept Mr Suppipat’s evidence on this.

On 31 May 2015, Mr Suppipat emailed Khun Op a spreadsheet regarding the “economics of the deal” with Khun Nop, which included an increased purchase price of $713 million and also the Part B call option. It is alleged by the Defendants that the price increase (from $450m) was to address the prospect that a call option would not occur. In cross-examination, Mr Suppipat said, however, that this price increase was because: (i) “it could take [a] long time until [he got] acquitted of all the [criminal] charges…[s]o [he] thought more liquidity would be better” and (ii) the “lower risk” to the buyer from the fact “most of the payment [was to be] paid after the projects [were] built” as opposed to entirely upfront (Footnote: ⁵⁹). That explanation is consistent with the contemporaneous documentary material above (in particular Mr Baker’s email) as well as Mr Suppipat’s Fourth Witness Statement, where he stated: “the balance of the price under the SPAs (the US$525 million ‘Remaining Amounts’) was only due upon projects reaching commercial operation dates (“COD”) and over two years post COD – this meant that the regulatory/construction risk was borne by the seller (i.e. me) in the deal and that Nop was not taking any risk” (Footnote: ⁶⁰).

Mr Suppipat did also fairly acknowledge in his witness statement that the increase was also as “a form of risk mitigation, so that My Companies would be entitled to US$700 million whatever happened” (Footnote: ⁶¹).

I accept Mr Suppipat’s evidence on this topic which I consider to be truthful. As Mr Suppipat explained, Khun Nop’s failure to push back on this apparently substantial price increase is revealing. No negotiation took place: “I remember that there was no pushback from Nop or Nutt, but I would not have expected there to be any, because at US$700 million, Nop would get more money because the call option would be more expensive. Increasing the price to US$700 million meant that Nop would receive 20% of US$700 million as the minimum he would be paid.” (Footnote: ⁶²) Consistently with this, as far as the WEH Managers were aware, the purchase price was increased without any consideration or negotiation as to how that would affect the economics of any call option being discussed between Mr Suppipat and Khun Nop (Footnote: ⁶³).

Khun Nop’s evidence as to the reason for the price increase was wholly unreliable. In cross-examination, he said: “This negotiation, it’s done by Khun Nuttawut, and that is what he informed to me, and the price increase that, you know, he told me from 450 to 700 […]. So I am okay with that, and one of the reasons that he told me that, you know, there should be no call option, which is okay to me. Not – he not using the terminology “call option”, but he just give Mr Suppipat more upside.” (Footnote: ⁶⁴) However, Khun Nop’s evidence in the Arbitrations told a different story entirely, namely that the increase was made in reliance solely upon a supposed report from Deloitte. Khun Nop had to accept in cross-examination that this version of events was false and that he did not have any report from Deloitte at the relevant time. (Footnote: ⁶⁵)

Khun Nuttawut said that he could not recall the reason for this price increase (Footnote: ⁶⁶). Had it been in exchange for the dropping of the call option then I consider that he would have remembered that.

Khun Op’s evidence was that he does not recall Mr Suppipat explaining the reason for the increase to him, but that:

“A…to me at that time, it doesn’t strike me anything, because as a nominee structure, it doesn’t matter, if it is 450 or 700, or 500, Nop will get, you know, his guaranteed payment, which linked to 0% of whatever, you know, money that is paid.” (emphasis added) (Footnote: ⁶⁷)

There is no single contemporaneous document in which the price increase is discussed in terms which suggested that it was given in exchange for Mr Suppipat abandoning the call option. Further, there are numerous references to the call option after the price increase on 6 June 2015 (and no evidence that this was the result of any confusion or uncertainty).

In the circumstances, I do not consider that the increase in price leads to the conclusion that the Global Transaction Representations were not (and could not have been) made. On the contrary, I find that they were made.

Thereafter, the call option remained in play.

On 2 June 2015, Mr Lakhaney emailed the WEH Managers, saying that a meeting with Linklaters and Khun Piphob: “simplified a lot of the insanity but ultimately the story of exit will need to be sorted out between Nop and [Mr Suppipat]. I will send out an updated structure diagram tomorrow”. Asked what this meant in cross-examination (Footnote: ⁶⁸), Mr Lakhaney said: “A. Well, if Mr Narongdej is buying the company what is the story around him having agreed a call option and selling his shares back to Mr Suppipat. It’s not a normal transaction. It’s not a normally heard about transaction.” (Footnote: ⁶⁹)

Ms Collins met Khun Nop and Khun Nuttawut again on 3 June 2015 in order for her to give them an introduction to the business of WEH and to discuss (1) Watabak financing; (2) financing to replace a loan from Partners Group; and (3) financing for the purchase of REC. On Ms Collins’ evidence, she hoped that Khun Nop would be able to assist in securing an extension to the Watabak SCOD from EGAT and in obtaining financing for the project.

On 4 June 2015, Khun Op emailed Mr Lakhaney attaching an Excel spreadsheet entitled “WEH buy back calculation Final.xlsx” which sets out how the consideration payable in respect of the call option was to be calculated. Specifically, it states that Khun Nop’s “Call Option price is 20% of Final Purchase Price”. The total purchase price is set out as $713 million. Mr Lakhaney forwarded this to Ms Collins and Khun Thun. There is no evidence of any indication from anyone that Khun Nop was not still willing to enter into Part B of the Global Transaction.

These emails again demonstrate Mr Lakhaney playing an active role in discussions about the deal with Khun Nop and keeping the other WEH Managers up to date with developments through his continued correspondence, which belies Mr Lakhaney’s suggestion, which I reject, that he was kept on the periphery of the Global Transaction negotiations.

On 5 June 2015, Ms Collins emailed Mr Nash of Baringa asking for modelling that would provide a $700 million valuation. Mr Suppipat had input into this process. On 6 June 2015, Ms Collins emailed Khun Lek, Khun Thun, Mr Lakhaney and Khun Op saying that she thought a $700 million valuation had been “agreed” and provided a summary of “our discussion on valuation”. Her email also notes that “In the event of an IPO 50% of payments due at COD will be paid within 90 days of the IPO event”.

Finally, on 6 June, Mr Suppipat emailed Mr Baker to inform him that:

“It’s done! We’ve agreed per below. In short it’s 175M at closing + 525M contingent”.

On 8 June 2015, Mr Lakhaney emailed Khun Luk and Khun Sutthipong of Linklaters, Mr Baker, Khun Lek and Khun Op with an “updated acquisition structure and valuation” which was made “[p]ost our friend’s discussions with Emma this weekend”. He attached a WEH Discussion Document (presumably recording the essence of the discussions between Ms Collins and Mr Suppipat) titled “Sale Structure – Renewable Energy Corporation Company Limited” and dated 8 June 2015. This sets out a total purchase price of $700 million with $175 million payment up front and external financing being used for $100 million of that sum.

On 11 June 2015 Ms Collins asked Mr Baker as follows (copying in Khun Lek, Khun Thun and Khun Op): “can you draft the current document relating to the call option and buy back so we can present a draft internally?”. Again and contrary to their evidence, this shows the WEH Managers’ active involvement (this time Ms Collins’) in the Global Transaction negotiations.

There is a further version of the “Sale Structure – Renewable Energy Corporation Company Limited”, dated 11 June 2015, which sets out, under the “Transaction Steps” section, that “[t]he transaction will be funded with US$ 75 mn of equity and US$ 100 mn of external financing, which shall be shared pro-rata by the purchasers”.

Also on 11 June 2015, Khun Lek sent Khun Thun a spreadsheet which calculated the “Net Cash to BVI (Footnote: ⁷⁰) (final pmt + call option)”. Khun Thun then sent an email to himself saying, “Shouldn’t deduct call option premium out of proceed to BVI”. This is further evidence of the WEH Managers (this time Khun Thun) playing an active role in the deal with Khun Nop and it is clear that discussions regarding the call option continued even after the price increase under the SPAs.

On 19 June 2015, Mr Suppipat authorised representatives of his Companies to enter into share purchase agreements, which had been drafted by the Bangkok office of Linklaters, for the sale of REC shares between Symphony and Fullerton (Fullerton SPA) and NGI/DLV and KPN EH (KPN EH SPA) (together, the REC SPAs). The total purchase price was USD 700 million, being USD 357 million under the KPN EH SPA and USD 343 million under the Fullerton SPA. Khun Nop claimed in cross-examination that he never read the REC SPAs properly and that he relied on Khun Nuttawut to brief him on the “headlines”. That is to be expected – as a mere nominee Khun Nop would not have been particularly interested in their detailed terms.

Under both the Fullerton SPA and the KPN EH SPA, fixed sums were to be paid (after an initial deposit payment of USD 12,250,000 and 12,750,000 respectively): (i) on the date of the completion of the sale of the shares (USD 12,250,000 and USD 12,750,000 respectively); (ii) 30 days thereafter (USD 12,250,000 and USD 12,750,000 respectively); and (iii) 60 days thereafter (USD 49,000,000 and USD 51,000,000 respectively). These initial three tranches (plus the deposit payments) totalled USD 175 million. A further “Remaining Amount” under each SPA (USD 257,250,000 and USD 267,750,000 respectively) of USD 525 million was to be paid according to “milestone” dates set out in an attached Schedule, which included 50% of this Remaining Amount within 90 days after the first day’s trading of the shares after the anticipated IPO.

When asked what steps he took to satisfy himself that he could pay the initial tranche prior to signing the REC SPAs, Khun Nop could not name any specific sources of funds, except for his brothers. (Footnote: ⁷¹) Even to that extent, Khun Nop went no further than to say “we just sitting face-to-face and talk among brothers”, following which Khun Nop’s brother said “okay, just let me know the plan: and then at the end he didn’t give it to me”. (Footnote: ⁷²) He admitted that his brothers had refused him permission to use these funds the day before he signed the SPAs (Footnote: ⁷³). Khun Nop admitted he did not even have the USD 12.25 million available which was to be paid under the Fullerton SPA on the date of completion. He alleged it was his understanding that Mr Suppipat knew he could not pay the first instalment at the time of signing, but that Khun Op had insisted that the SPA was signed quickly in order that financing could be obtained for the Watabak project.

The REC SPAs also contained, in particular, the following terms:

Thus, whilst there was a prohibition in the REC SPAs under clause 10.3.1 on dealing with the shares in REC until the purchase price was paid in full, there was no specific prohibition on any dealing with WEH shares. Mr Suppipat’s explanation for this was that an explicit prohibition was unnecessary because a sale of WEH shares was unlikely for tax reasons (Footnote: ⁷⁴). Despite the fact that selling the WEH shares would defeat the purpose of the prohibition in clause 10.3.1, the WEH Managers suggested that they understood that after the REC SPAs were entered into, it would be possible not only to pledge but also to sell the WEH shares in order to fund the purchase of the REC shares. (Footnote: ⁷⁵) Mr Suppipat also envisaged that Khun Nop might pledge the shares to borrow money to pay Mr Suppipat or refinance borrowings taken out to pay him. (Footnote: ⁷⁶)

The REC SPAs do not specifically refer to the call option. Khun Piphob explained, and I accept, that this was necessary to avoid alerting SCB to the call option arrangement because he and Mr Suppipat understood that SCB would not have been prepared to lend to WEH if it had known that there was an executed call option agreement in Mr Suppipat’s favour (Footnote: ⁷⁷). Indeed, this was the Defendants’ own case as to the effect of the disclosure of the call option arrangement, as put to Mr Héliot in cross-examination (Footnote: ⁷⁸).

On 19 June 2015, being the same day that the REC SPAs were entered into, Fullerton, KPN EH, Khun Nop, Ms Collins and Khun Thun entered into a Shareholders’ Agreement (KPN EH SHA) by which Ms Collins and Khun Thun were each to hold 20% of KPN EH. Allotting the WEH managers 40% of the shares in KPN EH reflected a 20% stake in REC at a value of approximately US$140m (based on the agreed purchase price of US$700m). No consideration was provided for those shares. I find, as the Claimants contend, that Ms Collins and Khun Thun held the KPN EH shares as nominees for Mr Suppipat pending his exercise of the call option, at which point it was understood that they would be transferred back to Mr Suppipat (Footnote: ⁷⁹). I accept the Claimants’ case that these were allotted to them as part of the blocking mechanism under the KPN EH SHA to ensure that Mr Suppipat’s interests under the Global Transaction were protected by Ms Collins and Khun Thun:

I accept the Claimants’ case that the KPN EH SHA was the mechanism by which Mr Suppipat’s interests were intended to be protected following the signing of the SPAs (Footnote: ⁸⁰). Mr Suppipat said he trusted the WEH Managers - “I trust them, because I hired them as top management…You can’t run a business without trusting your top lieutenants” (Footnote: ⁸¹) - and, as he explained in his Witness Statement, “The purpose of the KPN EH SHA and REC SHA was to empower the WEH Managers to protect my interests and to secure the call option in the transaction, because the agreements had provisions which prevented the sale of the KPN EH or REC shares without the approval of the shareholders (allowing Emma and Thun to block a sale of REC)” (Footnote: ⁸²). As Khun Piphob put it, “the situation is quite complex, so Mr Suppipat did his best effort to check, to check to put all the measure that he could do it, to protect himself” (Footnote: ⁸³). Allotting KPN EH shares to Ms Collins and Khun Thun meant that, per the KPN EH SHA, the disposal of REC’s WEH shares could not take place without a vote in favour by them.

However, the WEH Managers deny this: Ms Collins insisted that their involvement was only “to help give credibility to the financing and for a potential call option structure … they were the buyback mechanism” but “if there was no call option agreement, they were Mr Narongdej’s shares”. As such, she insisted that she and Khun Thun were holding these shares as nominees for Khun Nop. I do not accept this evidence. Indeed, it is contradicted by Ms Collins’s 7 July 2015 email stating that, “Nick will not have a pledge on the shares so he is relying on the parties although given this includes management he is satisfied.”.

Further, Ms Collins’ evidence was that she did not read the KPN EH SHA at the time (Footnote: ⁸⁴). Ms Collins is clearly an intelligent and diligent businesswoman and I find this suggestion to be implausible.

Mr Lakhaney accepted that he was “involved” with the KPN EH SHA, and that Ms Collins and Khun Thun held their interest in KPN EH SHA partially on his behalf.²⁴⁰ Whilst he said “I don’t recall any conversation with anybody around Ms Collins or Khun Thun or myself or anyone policing or blocking Mr Narongdej. This was in place for the call option” (Footnote: ⁸⁵), he accepted that these provisions gave Ms Collins and Khun Thun the ability to block any sale of the REC or WEH Shares until Mr Suppipat was paid the $175m (Footnote: ⁸⁶).

Khun Thun accepted that the agreement gave him the right to block the sale of WEH shares - and to either permit or prevent the Kasem Transfer (Footnote: ⁸⁷) (see below) - but maintained that (consistent with the Claimants’ case) the KPN EH SHA was “to do with the call options” and that “it wasn’t my share at all. From the start, it’s either – it’s either Mr Narongdej, or if there is a call option, then the right to the call option is belonging to Mr Suppipat.” (Footnote: ⁸⁸) Khun Thun, like Ms Collins, was unable clearly to explain the basis of a supposed belief that the beneficial rights to the shares would revert to Khun Nop in the event that no call option was agreed (Footnote: ⁸⁹). Khun Thun also alleged in cross-examination that he did not read the KPN EH SHA at the time. Again, I do not believe that evidence which is simply not credible. Indeed, Khun Thun later admitted in his evidence that he “probably” did read it in 2015, specifically after the REC SPAs were amended and restated in June 2015.

I accordingly accept Mr Suppipat’s evidence on this point and reject the evidence of Ms Collins, Khun Thun and Mr Lakhaney. I consider that Ms Collins and Khun Thun were indeed placed into the structure (by receiving the KPN EH shares coupled with the KPN EH SHA, executed on the day the REC SPAs were signed) to ensure, in particular, that any sale of the WEH shares by the nominee, Khun Nop, could be blocked by them on behalf of Mr Suppipat. As a mere nominee, it was important that Khun Nop could be controlled in this way. It was only envisaged that the call option would be entered into after Part A of the Global Transaction, so Mr Suppipat wanted protection of his companies’ interests in WEH in the meantime.

With this protection in place, on 22 June 2015, Mr Suppipat transferred 2,970,064 of his REC shares to DLV.

On 23 June 2015, Khun Thun emailed Khun Nop setting out points to discuss with SCB, including: “Support on Project Financing for Watabak Project…We need to close Watabak by Mid-August 2015 latest”.

An Advisory Services Agreement (ASA), dated 25 June 2015, but not executed until 3 August 2015, was entered into between NGI, Ms Collins, Khun Thun and Ms Siddique (Mr Lakhaney’s wife), whom Mr Lakhaney said was included for tax reasons.

In an email sent on 22 July 2015 to Khun Lek (and copied to Khun Thun and Mr Lakhaney), Ms Collins states that “I believe we have agreed a USD 10m fee – but deferred payments – which is why the sellers remain as NGI. Our friend will confirm to Lek and we can organise signature with NGI immediately”. In response, on the same day, in an email addressed to Ms Collins, Mr Suppipat confirmed that he was happy with the draft ASA, gave Khun Thun the “green light” to transfer Ms Collins’ REC shares to Khun Nuttawut (this will be discussed below) and instructed that the transfer document should be backdated to 16 July 2015 (in order to make it appear that REC was not a foreign company). On 27 July 2015, Ms Collins provided Lek with a signed transfer document dated 16 July 2015. The ASA was finally executed on 3 August 2015.

Under clause 2.1 of the ASA, Ms Collins, Khun Thun and Ms Siddique (ASA Ds), agreed to provide or procure the provision of “Services” as specified in Schedule 1 from 6 April 2015 until completion of the “Transaction” defined as “the direct, or indirect transfer of, the shares and other equity interests, directly or indirectly, in [REC] pursuant to the Share Purchase Agreements, together with the execution by the purchasers of their obligations thereunder including, without limitation, the payment to the sellers of the “Purchase Price” as defined payable pursuant to the [REC SPAs].” (emphasis added).

These relevant Services included:

The ASA Ds were also required, under cl. 2.2.3, to “promptly notify [NGI] of any developments which may have had a material adverse impact on the Service Providers’ ability to provide the Services or meet any other obligations under this agreement”.

In exchange, the ASA Ds were to receive a phased payment of USD 10 million each:

On the Claimants’ case, the ASA imposed an obligation on the ASA Ds to take steps to ensure that Mr Suppipat’s Companies were paid under the REC SPAs (Footnote: ⁹⁰). Further, they submit that the REC SPAs, KPN EH SHA and ASA must be considered together as they are core contractual documents which are revealing as to the parties’ understanding of the nature of the transaction. These were, they say, all part of Mr Suppipat’s blocking mechanism to ensure his interests under the Global Transaction were protected.

By contrast, the WEH Managers deny that the ASA imposed any prospective obligation on them to protect Mr Suppipat’s interests in the Global Transaction. Instead, they say that the USD 10 million was a reward for two things. Firstly, to reflect services they had already rendered, including their efforts to assist Mr Suppipat in finding a purchaser for his REC shares. Secondly, as consideration for the transfer of their REC shares to Khun Nop’s Companies and Khun Nuttawut. Under Part A of the Global Transaction, it was envisaged that Ms Collins, Khun Thun and Ms Siddique would transfer their shares in REC (1.06% and 0.5% respectively) to Khun Nuttawut and KPN EH to allow Khun Nop to acquire 100% of REC. The Managers say that the USD 10m payable under the ASA was in fact consideration for the transfer of their REC shares. They say that whilst a straightforward sale and purchase agreement was originally envisaged, they decided in June 2015 that, for tax reasons, it was preferable to receive the USD 10 million pursuant to an instrument unrelated to the transfer of the shares. Mr Suppipat conceded that the ASA was partly “backward looking” as a reward for their services and the shares, but the ASA Ds go further to say that it was completely “backward looking”.

Ms Collins said the ASA “was a simple, straightforward agreement, which was for the transfer, for the sale of our shares at the REC sale, and it was not related to -- it was not -- you know, there was no expectation that we could force the payment [by Khun Nop] of these shares”. When it was pointed out to her that she and Khun Thun had, by this point, very wide-ranging powers under the KPN EH SHA to block the onward sale of WEH shares she said only: “I’m sorry, that was never discussed with Nick or Mr Suppipat, that was never discussed” (Footnote: ⁹¹).

Khun Thun’s evidence was that, pursuant to the ASA, Ms Collins and Ms Siddique were obliged to ensure that Mr Suppipat transferred his shares to Khun Nop, but not that Khun Nop ever paid for them (Footnote: ⁹²). I do not accept this evidence.

Ms Siddique said that she had never read the ASA and did not understand, when she signed it, that it imposed obligations on her (Footnote: ⁹³).

I will explore this issue on whether the ASA was ‘forward’ or ‘backward’ looking in greater detail below when discussing the ASA-related claims. As will be seen, I find that Mr Suppipat is correct in saying that the ASA placed prospective obligations on the WEH Managers to protect his interests in the Global Transaction by (amongst other things) working to ensure that he received payment under the REC SPAs. The consideration payable under the ASA had not already been earned by the WEH Managers. Consistently with this finding, under clause 3.1 of the ASA, the payment of $10m was to be a staged payment, with each payment triggered by receipt from Khun Nop’s Companies of the amounts due under the REC SPAs at the relevant stages.

However, the ASA Ds did not comply with the ASA obligations. Khun Thun accepted during cross-examination that, after January 2016, he did not so much as enquire into Khun Nop’s intention to pay the outstanding sums due and that at no stage did he ever press Khun Nop to pay (Footnote: ⁹⁴). There is also no documentary evidence of any of the other WEH Managers enquiring as to the payment of the purchase price. Indeed, as will be seen, to suit their own financial benefit, the WEH Managers switched sides to assist Khun Nop. They removed Mr Suppipat’s blocking mechanisms by terminating the KPN EH SHA and the ASA for their own financial gain.

On 29 June 2015, Mr Suppipat, Khun Nuttawut, Khun Op, Mr Héliot and, on the Claimants’ case, Khun Nop, met in Paris (the First Paris Meeting). On the Claimants’ case, which I accept, this meeting consisted of 3 parts:

The Claimants contend that at the First Paris Meeting on 29 June 2015, Khun Nop and Khun Nuttawut (dishonestly) repeated the Global Transaction Representations by discussing with Mr Suppipat the call option proposal and acknowledging a Global Transaction structure that included Part A and Part B as inseparable elements (Footnote: ¹⁰⁰).

Mr Suppipat explained in his Witness Statement at [44], and confirmed in cross-examination, that “Nop and Nutt didn’t provide much feedback to me, but they showed no signs that they were not on board with the transaction structure and the call options…Nop and Nutt agreed with me when I said that the next step was to finalise and execute the call options”. I accept this evidence.

Khun Op’s evidence in contrast was somewhat inconsistent. His evidence in the arbitration was that, during this meeting, "... the key terms of the Global Transaction were initially agreed and it was my understanding that Part A of the Transaction was inseparable from Part B ...". However, his evidence about this meeting in his Witness Statement for this trial was that "… We went through the transaction in detail. Nop and Nutt complained about the amount of funds that Nop's companies had to borrow to make the payments under the sale arrangement and felt that, relative to this level of risk, they weren't getting enough money to act as nominees." Khun Op was asked about this in cross-examination:

“Q. … It is a very different summary, isn't it, from your summary in the arbitrations?

A. Yes, they can have their opinion, but they have not say no, that they will not do it; they just don't understand the transaction and they just questioning.

Q. They didn't understand the transaction and they asked questions about it?

A. Which is normal, right, for them to have questions, and it's normal for Stéphane to explain. That is the whole point of the meeting.”

When it was suggested to Mr Héliot that what actually happened at the meeting was that “Mr Suppipat proposed a complicated deal involving a call option, and other arrangements, and Khun Nuttawut listened politely to the proposal, which he was willing to take back to Khun Nop but without any commitment” (Footnote: ¹⁰¹), Mr Héliot explained: “That is not my recollection. My recollection is that I met with all three gentlemen [Mr Suppipat, Khun Op and Khun Nuttawut], whom I had not met before, and all of them were trying to brainstorm a legal way to achieve an intended economic result which had been agreed between them. So the complication was the legal structure; it was not the business deal.” (Footnote: ¹⁰²)

Consistently with this evidence which I accept, Mr Héliot produced a document headed “Notes from meeting – 29 June”. The note reflects the existence of the “Call Option” and “REC Call Option Signing” and sets out “REC Call Options Terms”. Mr Héliot explained in cross-examination that the note was to set out “the factual elements arising from the meeting which were necessary for [him] to draft the agreements that [he] was meant to draft”, including: the payments to be made for the REC shares, the steps to be taken with regard to signing and exercising the call option, and the terms of the call option.

In cross-examination, Mr Héliot insisted that this document was produced on the day of the meeting. Further, he claimed that the notes are “not a reflection of direction given to me by Nick. They are a reflection of each and every person who was attending the meeting in Paris’ instructions to me as to what I should be drafting”. Again, I accept his evidence in this respect: Mr Héliot was a thoughtful and transparently honest witness.

The notes concluded with a comment that Mr Héliot would “send emails to NP who will review/liaise with counsel”. Mr Héliot accepted that he was aware at the time when he prepared the notes that everything was subject to review and advice from counsel on Khun Nop’s side. (Footnote: ¹⁰³)

By contrast, although Khun Nuttawut accepted that Mr Suppipat raised the call option with him at a short meeting before the dinner, he said that he merely “listened to the suggestion” (Footnote: ¹⁰⁴) and, whilst he and Khun Nop were prepared to consider a call option if it made commercial sense, they would have needed to think about whatever terms were proposed. He said he did not agree to anything on Khun Nop’s behalf and Mr Suppipat knew that he was not empowered to do so. However, when taken in cross-examination to Mr Héliot’s note which records – in detail – the steps to be taken up to signing and exercise of the call option, Khun Nuttawut was unable to identify any specific inaccuracies in Mr Héliot’s account of what had been discussed (Footnote: ¹⁰⁵). I therefore reject Khun Nuttawut’s evidence on this.

Again, consistently with his evidence, the day after the meeting Mr Héliot emailed Khun Nuttawut “a draft of the call option as discussed yesterday” (first draft COA). In cross-examination, Mr Suppipat said he was “responsible for drafting [the call option] with Mr Héliot”.

This first draft COA provided for a guaranteed return of 20% of whatever sum was paid to buy the shares as a profit plus 20% of whatever increase there was in the value of the shares over and above the amount that had been paid. The first draft COA also contained the following material terms:

Khun Nuttawut did not respond to the email providing the first draft COA. His evidence was that he may have missed the email while on a flight to Thailand and/or was “too busy with other thing[s]” to read the draft in detail (Footnote: ¹⁰⁶). According to his iPhone diary, he was flying overnight from Paris to Bangkok. However, no explanation has been provided for his failure to correct what would have been, on his case, a significant misunderstanding on Mr Héliot’s part that the call option had been agreed in principle. Khun Nop alleged in cross-examination that he did not recall seeing the first draft COA and that, at the time, he “was not in the loop”. Further, he said he would never accept such an offer as “we expect[ed] more return”. I reject this evidence which I consider to be inherently unlikely in view of Khun Nop’s nominee status.

The first draft COA states in its preamble that, “In light of developments since that sale, including the initial public offering of [WEH], the Beneficiary has expressed an interest in repurchasing the Shares from the Grantor”. This reflects the parties’ intention to only sign the call option agreement after the IPO had taken place. Hence Mr Suppipat admitted in cross-examination that the COA was to be “undated” so that the parties could “keep it between [themselves]” and not disclose it on an IPO. It is the Claimants’ case that, following the clarificatory response from Linklaters on 30 May 2015, the plan was to place a partially signed COA (signed by Khun Nop) in escrow (Footnote: ¹⁰⁷) (see further below).

On 2 July 2015, Mr Suppipat emailed Ms Collins. He stated as follows (the WEH Managers referred to this in submissions as their Second Incentive Scheme):

Mr Suppipat’s email also again emphasised the fact that Khun Nop was a nominee: “When I met with Nattawut [sic] a few days ago he has made it clear that KPN is not an investor but they came in to help. He explained that the first 25M payment is actually more like a loan to help me pay all kind of expense”, i.e. a nominee arrangement with a COA.

Khun Nuttawut likewise failed, again without adequate explanation (Footnote: ¹⁰⁸), to respond to a further draft COA sent by Mr Héliot on 10 July 2015 (second draft COA). The Defendants highlight that, according to his iPhone calendar, Khun Nuttawut flew to London on 10 July 2015, returning on 13 July 2015. But again, this is no reason to not respond to what would have been a significant misunderstanding, especially since the COA had clearly been developed by Mr Héliot in the intervening period.

SCB’s Credit Committee considered Khao Kor again on 9 July 2015. The presentation by the CMD shows that SCB had by now become aware of two important developments. First, a further change in the shareholding structure of Khao Kor whereby the intermediate holding company SEC had been entirely removed and the shares of Khao Kor were held by three shareholders not including WEH. Second, the impending sale of Mr Suppipat’s interest in REC to KPN. The Credit Committee expressed concerns about the shareholder restructuring of Khao Kor but referred the matter to the ExCom for further consideration.

The Credit Committee resolved, on 9 July 2015, not to finance the Khao Kor project until REC had sold its WEH shares to KPN EH.

SCB’s ExCom considered the matter later the same day. It passed a Resolution on 9 July 2015 (signed by Khun Yol Phokasup on 5 August 2015). This stated: “the meeting attendees are unable to consider the spending of the credit facilities until the following issues are addressed or rectified: 1. KPN purchases all the Wind Energy Holding Company Limited (WEH) shares currently held by [REC], the price of the aforementioned shares is paid in full and the transfer of the aforementioned shares is legally valid, whereby KPN would become WEH’s new majority shareholder. 2. Ensure that Wind Energy Holding Company Limited (WEH) shall resume the shareholding of approximately 9% in [Khao Kor] as before the shareholders restructuring.” (emphasis added)

Regarding condition (1), it was Khun Anucha’s evidence that he did not believe it was “ever altered as a requirement”. Payment of the shares had to be made in full before credit facilities would be made available. A particular concern with regard to condition (2), which the ExCom noted in its resolution, was “whether WEH or other stakeholders hold any right to bring a lawsuit in order to revoke SEC’s sale of [Khao Kor]’s shares as they were of the opinion that the sale of [Khao Kor]’s shares was at capital price”. Khun Anucha accepted that capital price meant “book value” (Footnote: ¹⁰⁹) and that the members of the ExCom were “expressing concern that a sale at book value raised doubts about whether it was a fair value in good faith.” (Footnote: ¹¹⁰)

Khun Anucha’s evidence was that ultimately no sale (at book value or at all) took place and so the problem resolved itself (Footnote: ¹¹¹), because following the conclusion of the REC SPAs, Khao Kor entered into a lending facility with a different bank. But Khun Anucha agreed that the bank’s requirement would otherwise have been that the sale of Mr Suppipat’s interest in WEH to KPN should be completed and paid for before funding for Khao Kor was approved (Footnote: ¹¹²).

The 9 July 2015 email exchange also includes the following email from Khun Anucha: “Please make sure we understand the terms of WEH sale to KPN. I understand that the settlement of the shares includes some deferred payments to K.Nopporn. Is there any risk that the shares will revert to K.Nopporn if KPN defaults on the deferred payments?” Khun Pimolpa responds that: “We will definitely check this as condition. Understand from KPN that the 100% share transfer will be completed since Day1. The structure is not “Deferred payment” of 100% value but only additional value is only upside from IPO with gentleman agreement outside but we will definitely review this with legal team.” (emphasis added)

Khun Anucha stated that he understood the structure to consist of “100% payment for the shares in one time, and there would be additional payment only if the company become publicly listed through the IPO.” (Footnote: ¹¹³) This is wrong as a matter of fact (given that the USD 175 million was not payable “in one time” and instead there was a deferred payment structure which Khun Anucha was not told about – “I was surprised [to discover] that there was a deferred payment structure in there because as Khun Pimolpa told me that in July there was no such deferred payment” (Footnote: ¹¹⁴)), but it also does not account for the “gentleman agreement outside” and what that might have meant.

Khun Anucha’s evidence appeared to be that he had then done little, if anything, in 2015 to better understand the position including the question of whether there was a risk of rescission of the share sale and that he did not believe it to be his role or responsibility to do any more. Further, he initially said that: “I believe I got the answer” to the question of whether default would lead to reversal of the share sale and that “In my understanding it was dealt with”. But in cross examination he admitted as follows:

“Q: So is it fair to say that because it was the role of others to check this and they didn’t raise it with you, you assumed it was complied with?

A: Yes.” (Footnote: ¹¹⁵)

Khun Anucha said he understood the “gentleman agreement outside” to be “Outside the sales and purchase agreement” but again he admitted in cross examination:

“Q: Did you ask any more questions about the gentlemen’s agreement or were you told anything more about it at this stage?

A: No.”

He had assumed that the legal team would find out more about it, but:

“Q: Did you know anything more about the gentleman’s agreement or is it just what is written here?

A: Just what is written here.

Q: No conversation, no nothing.” (Footnote: ¹¹⁶)

Similarly, Wallaya Kaewrungraung (Khun Wallaya) (SCB’s Chief Legal and Control Officer) said that she “didn’t enquire any further” having received this email because: “if there had been any reviews or any work done, it would be with the relevant teams, so it’s not for me to go and ask or investigate whether they have done their work” (Footnote: ¹¹⁷). She also suggested that the bank would not be interested in a “gentlemen’s agreement outside” and stated: “If it is not documented, and the bank is not one of the parties, we don’t pay attention to it”. (Footnote: ¹¹⁸) In response to the Court’s question, she added: “I confirm that we pay attention to the final target that the shares have been legally transferred and what the gentlemen’s agree amongst themselves, we are not part of it, we are not one of the parties.” (Footnote: ¹¹⁹)

Khun Wallaya’s only explanation as to why she did not ask Khun Pimolpa what she understood the gentlemen’s agreement to be was that “the email, it said Khun Pimolpa will review this with the legal team […] if there had been any issues, it would have been raised to me.” (Footnote: ¹²⁰) However, Khun Wallaya had to concede that she was “not sure” whether any such investigation work was done. (Footnote: ¹²¹)

I do not consider that there is sufficient evidence to support the Claimants’ suggestion that this was deliberate and dishonest conduct on the part of SCB showing that it was a party to the dishonest asset-stripping conduct of Khun Nop (described below). However, it is fair to say that SCB’s conduct in this respect fell well short of the conduct to be expected of a diligent and reputable bank.

On 16 July 2015 Mr Héliot emailed Khun Piphob and Mr Baker, copying Mr Suppipat, attaching a draft “steps plan/MoU”, which he said “purport[ed]” to summarise the various transaction steps, and asked for their comments and questions. Mr Héliot accepted that his 16 July 2015 draft “steps plan/MoU” was a work in progress, for internal use on Mr Suppipat’s side. (Footnote: ¹²²) It did not represent an agreed set of arrangements. That is why the email and draft “steps plan/MoU” was not sent to Khun Nuttawut; a draft Steps Plan was only sent to him a month later on 14 August 2015, and a draft MoU later still, on 24 August (see below).

Also on 16 July 2015, Khun Piphob and Khun Op met with Khun Nuttawut at KPN’s offices in Bangkok (the Bangkok Meeting). Khun Nuttawut accepts that the call option was discussed at this meeting. It is the Claimants’ case that the Global Transaction Representations were continuing, and indeed that they were made again (dishonestly) by Khun Nuttawut at the Bangkok meeting. (Footnote: ¹²³)

Khun Op gave evidence that:

“A. On that particular meeting if I would recall, still it was silent from Nuttawut, from the KPN team, I would say it was silence. They said okay; they said okay, okay, yes, let me take a look at this. He always said: let me take a look at this and get back to you; all the time.

Q. But what was your view, what was your opinion, give me your opinion?

A. My opinion, okay, you ask me, my opinion, I said okay, they are still in this, the deal is progressing, they need time to look into the details, that was –

Q. That was your view?

A. That's my view.

Q. That was your view, and you conveyed that to Mr Suppipat?

A. I think so.” (Footnote: ¹²⁴)

Khun Piphob gave evidence that, “The meeting is quite creative. We talk a lot on the call option concept. Even if Mr Nuttawut did not really get into the detail, like clause by clause or something like that, but he list quite a number of questions, and he asked us to improve the call option.” (Footnote: ¹²⁵)

The same day as the Bangkok Meeting, 16 July 2015, Khun Piphob reported back to Mr Suppipat, Mr Baker and Mr Héliot via an email regarding the “Prelim Comments from KPN” on the draft COAs. In the email he explained that, “Nutt and Srisant Chitvaranund … have not yet read the draft call option agreement and there has been no comment on the contents so far. Nonetheless, we have gone through the payment mechanism as outlined in the draft COA together”. Khun Piphob also set out what he described as the “key” comments from Khun Nuttawut that required Mr Suppipat’s attention.

With regard to Khun Nop’s position at this stage, Khun Piphob gave evidence that, prior to the meeting, Khun Nop “did not really review the agreement in detail. He just touch on the concept”. When it was put to him that he could not, therefore, have considered that the COA was agreed, Khun Piphob explained: “[Khun Nop] agree on the formula. Provided that he would not take loss upon the exercise of the call option. If it is true as he believe, as we explained to him, then he has no objection at all on the concept” (Footnote: ¹²⁶).

I find as a fact that at the Bangkok Meeting, Khun Nuttawut led Khun Piphob and Khun Op to believe that Khun Nop still intended to enter into the COA and that this fact was conveyed to Mr Suppipat.

On 18 July 2015, Ms Collins texted Mr Lakhaney saying that she “[n]eed[ed] to share the discussion of Friday with our friend on the call option – m change but drive by the op nop and nuttawut consortium [sic] – just getting rather bored!!!!”. Ms Collins said in cross-examination that she “[couldn’t] remember when [this meeting] was or what it was about”. This text exchange contradicts the evidence Ms Collins gave that, “we never had any discussion with Mr Suppipat about the call option” and were “kept out of the loop” regarding the call option, a point which she repeated more than once in cross-examination, and which evidence I reject. Similarly, Mr Lakhaney stated in cross-examination that, “I was not involved in the negotiation of the call option” and Khun Thun also said: “I was kept out, yes from the negotiation about the call option”. I do not consider that the WEH Managers were telling the truth about their involvement in the COA negotiation. Their evidence frequently appeared collusive to me – this being one such example - and I accordingly approach it with caution throughout.

On 27 July 2015, the REC SPAs were amended and restated to address altered financing arrangements (the Amended and Restated REC SPAs). The document itself is backdated to 3 July 2015 (Footnote: ¹²⁷). The principal reason for this amendment, as Mr Suppipat confirmed in cross-examination, was the recognition that Khun Nop did not have the (approximately) USD 25 million he was required to pay on the date of closing under the original REC SPAs.

Khun Piphob similarly explained that the date of the agreement was changed to assist Khun Nop: “He already been in default on 4 July, and on 7 July, Mr Suppipat was stupid enough to allow him to enter amendment and restatement agreement by backdating it to 3 July in order to make him clean and transfer the shares to him” (Footnote: ¹²⁸). This was also Khun Thun’s understanding of the reason for the restatement. In his First Witness Statement, he said: “I believe the circumstances of the deferral of payment dates…were linked to funding arrangements involving Mr Narongdej and the KPN Group.” (Footnote: ¹²⁹) Asked what he meant in cross-examination, Khun Thun’s evidence was unclear: he appeared to suggest that this was a reference to the fact that it had not yet been possible to raise the full USD 100 million required in addition to Mr Suppipat’s equity, but then said “Because it is 175, so it was cannot raise 100, the other part probably another – about $25 million.” (Footnote: ¹³⁰)

Under the Amended and Restated REC SPAs, Khun Nop did not have to make any payment when the shares were transferred, as the First Instalments totalling USD 175 million were payable in two tranches 30 and 60 days after closing.

On the same day that the Amended and Restated REC SPAs were entered into, 27 July 2015, the share transfer instruments for the transfer of the REC shares held by NGI and DLV to KPN EH were executed. It is the Claimants’ case, which I accept, that the Amended and Restated REC SPAs were entered into, and DLV and NGI transferred their REC shares to KPN EH, in reliance upon and induced by the (continuing) Global Transaction Representations (Footnote: ¹³¹).

Redacted versions of the REC SPAs, from which SCB allege that the amount of immediate and deferred consideration payable under the SPAs had been redacted, were inspected in REC’s offices by individuals from SCB on 29 July 2015. In cross-examination, Khun Wallaya suggested that the bank was not concerned about the price “[b]ecause the price of the share purchase agreement is between the two parties, a buyer and purchaser, and the bank is not one of the parties. And the bank didn’t take the shares as the security”.

This seems surprising in the light of the bank’s keen interest in the purchase price (and whether it had been paid) in the case of Khao Kor (above), and it again suggests a lack of due diligence on the part of SCB.

Khun Piphob emailed Clare Lam and Christoph Mauchle of VP Bank on 29 July 2015 explaining that, “[Mr Suppipat] … and KPN … would like to enter into a written commitment as soon as practicable but would bind both parties only upon the IPO of WEH”, and as such they “would like to appoint VPB as an escrow agent to hold two copies of such written commitment, which will only be released one to each party only upon the IPO event”.

In cross-examination, Mr Héliot said that he was not sure who had originally suggested the idea of using an escrow agent, but it “might” have been him.

There was some discussion as to the legality of this proposed arrangement as a matter of Thai law. Mr Suppipat (Footnote: ¹³²), Khun Op (Footnote: ¹³³) and Khun Piphob (Footnote: ¹³⁴) all gave evidence that they believed this arrangement could be carried out lawfully. I accept their evidence. Mr Héliot said he was not told if the scheme was lawful. But, ultimately, the arrangement was not effected in any event because, for the reasons explained below, Khun Nop refused to enter into a call option.

During 2015, Watabak had difficulty in making payment under the TSA with GE. As such, it repeatedly negotiated with GE for extensions. Under the original TSA, if WEH did not have financing in place by mid-March 2015, GE could terminate the agreement. As it turned out, financing was not in place by that date, when Mr Suppipat still had an interest in REC. The TSA was accordingly re-negotiated by Ms Collins and it was amended in March 2015. The new longstop deadline for financing being in place was set to the end of May 2015. The payment schedule was also adjusted so that payments were to be made from November 2015.

However, finance was again not in place by the end of May 2015, and there was accordingly further re-negotiation. A fresh TSA was successfully agreed and dated 30 September 2015. According to this new TSA, the deadline for securing finance was mid-October 2015, with a long stop date of 15 December 2015, and payments were to be made from mid-December 2015. As such, signature of the Watabak Facility was targeted for 28 September 2015.

In early August 2015, Watabak had not yet secured the required funding. The WEH Managers liaised with various third-party funders (Bank of America, Merill Lynch and Credit Suisse) to try to obtain it. These discussions occurred in the context of the 26 June 2015 Proclamation of the Energy Regulation Commission of Thailand (ERC) on the Determination of Position Clearance between Wind Farm Projects and of Electricity Installed Capacity for Wind Farm Operator, which had the effect of reducing the number of compliant wind turbines on the Watabak project and accordingly adversely affected the electrical capacity which the Watabak project could produce (although the Proclamation was later conditionally waived by ERC for Watabak on 4 September 2015).

Despite this, on 3 August 2015, Mr Lakhaney texted Ms Collins saying, “Fyi, Nop met the SCB chairman, he’s given a green light to everything which is excellent”. She replied, “Agree”. There is disagreement regarding whether the relevant “Chairman” was Dr Vichit Surapongchai (Dr Vichit), or Khun Anand Panyarachun (Khun Anand), but there was a general consensus that it was one of the two. When asked about this during cross-examination:

It follows that SCB’s Chairman had given a green light to SCB funding Watabak. This will be important: it suggests (and I find) that now that the REC SPAs had been concluded, SCB was willing to finance Watabak and would not have let it fail, regardless of whether any further “ring-fencing” took place or not (see below).

Meanwhile the COA continued to be negotiated between the parties. On 14 August 2015, Mr Héliot emailed Khun Nuttawut, copying in Mr Suppipat and Khun Piphob, attaching (i) a “new” version of the call option (which contained various changes) for Khun Nuttawut’s review and comments (third draft COA), and (ii) a draft “Steps Plan” (Steps Plan).

As Mr Héliot accepted, this was the first time that a Steps Plan had been sent to Khun Nuttawut (Footnote: ¹³⁸) because the structure for the proposed transaction was still evolving even on Mr Suppipat’s side. (Footnote: ¹³⁹) It set out “the agreed steps for the sale by NS of its interests in WEH, and potential repurchase of the same following the IPO of WEH”. It was, as Mr Héliot acknowledged, a long, detailed and dense document, which Khun Nuttawut was going to require some time to digest. (Footnote: ¹⁴⁰)

Khun Nuttawut said in his written evidence that he remembered these documents and that when he “skimmed through the steps plan and went straight to the substance of the calculations [he] was shocked.” He said that he then called a meeting with the WEH Managers as, since English is not his first language, he though he “perhaps … did not understand the proposed terms”. He gave evidence that:

“The major problem with the proposed call option agreement was that it required us to sell back the REC shares at 65% of the value of the underlying WEH shares. Once you took into account the cost of the finance of the deal and the opportunity cost of the capital which was deployed, there was a significant risk that Khun Nop would lose money on the transaction.

In addition, the transaction was open ended and could be exercised at any time after 1 January 2020.

There was a further concern, in that the draft said nothing about Mr Suppipat’s criminal charges. In principle, Mr Suppipat could exercise the call option whilst still a fugitive from Thai justice. This would have been completely unacceptable to the banks.” (Footnote: ¹⁴¹)

In cross-examination, he said that what troubled him was the estimated valuation of WEH at USD 7.5 billion at the IPO, which he considered too high (Footnote: ¹⁴²):

“Q: […] What was it in here that you were shocked by?

A: First of all, my Lord, this is very complicated, very hard to understand. We did calculate following what Mr — I did calculate it following Mr Héliot’s table here.

He put it like the company would be valued US$7.5 billion. When we purchased this company, the company price is $1.2 billion, and he come up with a calculation that started with 7.5 billion, and with 7.5 billion we will make a profit.

I did some calculation, and first of all, I don’t believe the company will be worth 7.5 billion. I don’t know if it will be worth that much. We did some calculation based on this table which I don’t know whether it is right or wrong, but if with a lower valuation, we are at risk at being zero or even losing money in this case, that is why I feel like I was shocked with this, my Lord.” (Footnote: ¹⁴³)

However, Khun Nuttawut accepted that, at least at an earlier stage, he had understood that the proposal was for Khun Nop to receive a guaranteed profit of 20% of the price payable for the REC shares by the time the COA was exercised and 20% of any uplift in value (Footnote: ¹⁴⁴).

To the extent that Khun Nuttawut’s evidence is that he understood, on finally reading the draft COA on 14 August 2015, that that proposal had radically changed such that the Global Transaction would only be profitable for Khun Nop at an IPO valuation which he considered unrealistic, he could not explain his complete failure to inform any of Mr Héliot, Mr Suppipat and/or Khun Op of these supposed concerns of his. I do not accept this evidence which I find to be an excuse made up by Khun Nop and Khun Nuttawut after the event, in order to justify their deliberately misleading conduct (viz, that Khun Nop intended to enter into the call option).

Indeed, Mr Héliot explained that the figure of US $7.5bn was simply a worked example of the formula (Footnote: ¹⁴⁵), pursuant to which, Khun Nop would not be exposed to the risk of any loss. Khun Nop stood to make c. USD $140 million as soon as the COA was executed. As Mr Suppipat convincingly explained:

“A: […] we have had agreed that the floor price is [USD] 140 [million], provided they pay the purchase price, and anything beyond that, they have to make the company perform beyond the IPO valuation. […] Even if you don’t look at what has been agreed, my Lord, people who comes in with nothing manage the company, manage to pay me one half of 700 million out of my own asset, and get 140 million. That is attractive in any case. Now, if the company performs well post IPO and assuming the IPO price is 2 billion plus, and the value has been increased because they perform, the incentive, in case of the valuation of, say, 4 or 5 billion, which is not unreasonable, because it would have been four, five years post IPO and if IPO price is close to 3 billion, a 50% uplift to the shareholder, 60% uplift or even 100 or 200, it is more than reasonable expectation.” (Footnote: ¹⁴⁶)

On 19 August 2015, Mr Héliot emailed Mr Suppipat, copying in Mr Baker and Khun Piphob, attaching, “in advance of our meeting tomorrow”, the “first draft” of a proposed Memorandum of Understanding (MoU). This MoU incorporated (as a schedule) a revised Step Plan.

On 24 August 2015 Mr Suppipat forwarded that email and the 18 August 2015 draft MoU to Khun Nuttawut. On the same day, a different draft MoU dated 24 August 2015 was sent separately by Mr Héliot to Khun Nuttawut. Mr Héliot’s covering email explained that the MoU is to “define the framework for the transaction” and “the steps plan would be an attachment to that MoU”. Further, he noted that “minor changes have been made to the steps plan compared to the version I have circulated earlier” and asked Khun Nuttawut to let him know if he “would like to see a redline version”.

This draft MoU sets out the COA arrangement: Khun Nop would buy REC for USD 700 million, putting in no equity himself but using USD 75 million of vendor financing from Mr Suppipat and USD 100 million of commercial loans raised. As consideration for the execution of the COA, he would receive “Call Option Consideration” of USD 140 million (i.e. 20% of the purchase price paid under the REC SPAs). When the option was exercised (after the IPO), Khun Nop would receive a “Purchase Price” (or “upside”) calculated by applying a discount to the amount by which the discounted market value of the repurchased REC shares exceeded the Call Option Consideration.

Notably, in clause 1.9.1, the draft MoU refers to the Advisory Services Agreement, entered into by the WEH Managers on 25 June 2015, affirming that “upon receipt of the first cash instalment of the Acquisition Price each of [the WEH Managers] will receive 6 million US dollars, pursuant to an advisory services agreement with NGI”. This confirms that the ASA was intended to be (at least in part) “forward-looking” (see below).

In re-examination, Mr Héliot explained that this document reflected his discussions with Mr Suppipat regarding the outcome of a 14 July 2015 meeting in Cannes:

“Like I said in my witness statement, [Mr Suppipat] from time to time took a call or made a call to counterparties in Thailand, including Khun Nop, based on his – based on what he told me from the persons he was on the phone with, and so – and then gave me back the structural changes that were required in the documents, based on those discussions.” (Footnote: ¹⁴⁷)

The revised Steps Plan was at Schedule 1 to the draft MoU. Among other things, it set out in Step 5 a list of steps to be taken and documents to be agreed prior to the Fullerton SPA Closing, including:

Mr Héliot’s evidence was that he was not aware when he sent the draft MoU to Khun Nuttawut that Symphony had already transferred its shares to Fullerton before any call option had been signed, but that when he was informed about that by Mr Suppipat or Mr Baker he found that concerning: (Footnote: ¹⁴⁸) “[Mr Suppipat] had obviously created a legal risk for himself by transferring the shares without having proceeded to the list of steps that I had set out in my steps plan”. (Footnote: ¹⁴⁹)

Again, Khun Nuttawut did not respond to Mr Héliot’s email. Khun Nuttawut’s initial written evidence was that he did not reply because, by 24 August 2015, Khun Nop had already decided he did not intend to enter into a COA (Footnote: ¹⁵⁰). However, by his Fourth Witness Statement (not served until 12 October 2022), Khun Nuttawut changed his evidence on this point: he now says, inconsistently, that no decision was taken until a meeting he attended with Khun Piphob and the WEH Managers on 3 September 2015 (Footnote: ¹⁵¹), but that in any event the MoU and COA represented “a bad deal” and Khun Nop “[didn’t] like it already” by late August (Footnote: ¹⁵²).

In cross-examination, Khun Nuttawut was not able to provide any proper explanation as to why, if he and Khun Nop were negotiating in good faith with a genuine intention to enter into a COA, he did not go back to Mr Suppipat’s team to seek to improve the terms of the alleged “bad deal” (Footnote: ¹⁵³). In cross-examination, Khun Nuttawut said he did not read the MoU thoroughly, despite being a party to it, (Footnote: ¹⁵⁴) and then suggested that “this is very complicated” and that he did not understand it properly because it was in English (Footnote: ¹⁵⁵). I reject this evidence; I consider that his failure to revert to Mr Suppipat was designed to continue to mislead him into believing that Khun Nop would enter into a COA.

In cross-examination, Mr Suppipat admitted that Khun Nop and Khun Nuttawut were, at this point, still “digesting” the call option (Footnote: ¹⁵⁶).

When asked in cross-examination why he had “never insist[ed] in black and white on the call option being signed”, Mr Suppipat responded that “Because … it is complex at the end of the day we thought to shorten the time … we decided to do [a Memorandum of Understanding]. So that things can be easier to address” (Footnote: ¹⁵⁷). I accept this evidence.

On 24 August 2015 at 11:54am Bangkok time, Khun Lek emailed the WEH Managers with a subject line “2^nd closing” explaining that “[o]nce [Ms Collins] talks to [Mr Suppipat] this afternoon, who will give me a greenlight to expedite the Share Transfer Document … heads up to Symphony and Fullerton already …. I am going to advise K. Lakkanasiri to provide Nune REC Shareholders book and this will be updated right after the signing”.

In cross-examination, Mr Suppipat insisted that whilst he “may have been considering” the decision to transfer the REC shares from Symphony to Fullerton, there was “no certainty that [he] will make the decision until [he] spoke to [Ms Collins]”. I do not accept that evidence. In fact, what appears to have been holding up the share transfer was not the COA but reaching agreement on amendments to the KPN EH SHA – and the last outstanding point in that respect was resolved on the morning of 24 August 2015.

At 3:20pm on 24 August 2015 Khun Lek emailed Khun Nop, Khun Nuttawut, Khun Thun, Mr Lakhaney, Ms Collins and Khun Luk with the subject line, “The 2^nd closing is happening…”. She said “I am coordinating with Linklaters now, and will keep you posted on the progress please”. Khun Lek confirmed in cross-examination that she “believe[d]” that she “had the green light for the transfer by no later than 3:20pm ICT” (Footnote: ¹⁵⁸).

Shortly after 3:20pm on 24 August 2015, Symphony transferred its REC shares under the Fullerton SPA, as it was contractually obliged to do.

The Claimants’ case is that, over the course of two phone calls with Mr Suppipat on 23 and 24 August 2015 (Footnote: ¹⁵⁹), Ms Collins put undue pressure on Mr Suppipat to cause Symphony to transfer its REC shares under the Fullerton SPA, despite the COA not yet having been executed. Ms Collins generated this pressure by representing that WEH urgently needed to close the Watabak financing in order to avoid irreparable harm to the project, but that SCB was not willing to sign the facility agreement until the transfer to Khun Nop had completed (the Watabak Representations) (Footnote: ¹⁶⁰).

As is common ground, there was in reality no such urgency: Ms Collins accepts that the Representations were false if they were made (Footnote: ¹⁶¹).

Mr Suppipat alleged in his Witness Statement that during the 24 August 2015 call with Ms Collins he expressed his concern about completing the transfer with the COA not yet in place. In response, Ms Collins told Mr Suppipat to trust her, and that the COA would be executed after completion (Footnote: ¹⁶²). Mr Suppipat alleged in cross-examination that “I think she urged me to transfer the share, and the same reason that Thun has given: oh, if you don’t do this we are going to miss the schedule, financial close in September, and if we do Watabak will be in trouble, and you should transfer. I don’t remember what kind of word she used, but she urged me to transfer” (Footnote: ¹⁶³), but he later discovered that, in reality financial close could wait until June 2016 (Footnote: ¹⁶⁴). In his Witness Statement, at paragraph 67 Mr Suppipat referred to an earlier date by which financing could have concluded, specifically “later in 2015”. As such, his evidence with regard to the Watabak Representations was vague and unspecific.

Meanwhile, Khun Op’s evidence was that Mr Suppipat told him that that he had transferred the shares because Khun Thun (not Ms Collins) told him that it needed to be done “or bank will not approve or whatever” (Footnote: ¹⁶⁵) and repeated that the bank not funding “was the reason that Nick told me that Thun gave to him when he transfer the share”. (Footnote: ¹⁶⁶)

Ms Collins appeared to accept in cross-examination that she had initiated the 24 August phone call and stated that, “Thun had been chasing on Friday [21 August 2015] because we couldn’t start the debt process. So I was – I agreed that I would make the phone call in the afternoon to see if Mr Suppipat would move the shares” (Footnote: ¹⁶⁷). However, Ms Collins insists in her Witness Statement at paragraph 188 that she “did not urge Mr Suppipat to move his shares”. Further, she said in cross-examination that Mr Suppipat was well aware that Watabak was at real risk of harm if the shares were not transferred (Footnote: ¹⁶⁸). It was her evidence that there was no discussion about protecting Mr Suppipat’s interests or the call option (Footnote: ¹⁶⁹). I accept Ms Collins’ evidence on this issue. I find that Mr Suppipat made his own decision to go ahead without the executed call option being in place.

Further, there is a lack of evidence for the Claimants’ allegation that, whatever she said during that call, Ms Collins did so “on behalf of Khun Nop” (Footnote: ¹⁷⁰). Indeed, this allegation was not put to Khun Nop or Ms Collins (Footnote: ¹⁷¹).

In the circumstances, I do not consider that the Claimants have proved that the Watabak Representations were made to them or indeed (assuming they were made) relied upon by them.

On the WEH Managers’ case, although Mr Lakhaney had seen the schedules to the MoU (Footnote: ¹⁷²), neither he nor the other WEH Managers had seen or discussed the MoU, the Steps Plan, or any other call option documentation. In particular, as at the end of August 2015, on the WEH Managers’ case, not having heard anything from Mr Suppipat, Ms Collins still had no knowledge of the status of the call option discussions. I do not accept Ms Collins’ evidence in light of the documentary evidence; in particular it is clear she had ongoing communication with Mr Suppipat through Khun Lek.

On the same day that Mr Héliot emailed the MoU to Khun Nuttawut, namely 24 August 2015, Mr Suppipat emailed the MoU to Khun Lek, annexing the Steps Plan document and asking that it be handed to Ms Collins. The 24 August email from Mr Suppipat to Khun Lek was received by Khun Lek at 4:51pm, after Mr Suppipat had transferred his shares on that date (see below).

Two days later, on 26 August 2015, Mr Suppipat asked Khun Lek to print out various documents “and give them to Emma”. (The version of the MoU that Mr Suppipat asked Khun Lek to print was the first draft version circulated on 19 August 2015 by Mr Héliot – entitled “DRAFT – 18 August 2015”. That was different to a version of the MoU that was circulated on 24 August 2015 by Mr Héliot to Khun Nuttawut).

Importantly, Ms Collins accepts that sometime after 26 August 2015 she received by courier a set of draft documents relating to the call option which were delivered in hard copy to her house in Thailand. She said she had only opened the package some time after she received it and did not read the documents but simply scanned them to her lawyers (Footnote: ¹⁷³). I do not accept Ms Collins’ evidence. She is clearly an experienced businessperson who masters the detail of her brief. I do not believe that she would have left a couriered package of such important contractual documents unopened for some time and then when she finally opened it, not even have read their contents. This incident shows clearly that Mr Suppipat was keeping her in the loop with regard to the call option negotiations, and to such an extent that he would provide her with hard copies of the relevant documents.

The target for financial close of Watabak was September 2015, as Khun Kanyarat Kanaprach (Khun Kanyarat) of WEH set out in an email of 4 August 2015. In cross-examination, Mr Supippat confirmed this date and the fact “that the share[s] need to be transferred before they sign [the] financial document[s]”.

On 27 August 2015, Khun Kanyarat emailed several banks, including SCB, informing them that “the change of REC shareholder has been done. Currently REC has [been] renamed to “KPN Energy (Thailand) Co., Ltd.”.

On 1 September, SCB lawyers produced a first draft of the facility documents.

On 10 September 2015, Khun Jittinun emailed Khun Parnu and another attaching a “summary of discussion with K. Thun” and commenting “I do not copy all team members as I think that the purchase price should be kept confidential …”. In cross-examination, it was Khun Jittinun’s evidence that she was unwilling to disclose the price as she wanted to consult more senior members of SCB first. The summary attached to her email outlines that, of the “Total purchasing price of approx…700MUSD”, “175M USD have already been paid” and “525M USD remains unpaid”. (emphasis added)

The statement that $175m had already been paid was, of course, false. It was Khun Jittinun’s evidence that the information she used to make this summary, including this false statement, was provided by Khun Thun. I accept that evidence. It was Khun Wallaya’s evidence that “the legal team were completely unaware of the amounts which had to be paid both overall and by way of initial payment 60 days after closing .. until the arbitration” as they were not included in “the emails among the business and corporate teams”. Khun Arthid accepted that the bank “insisted on seeing the share purchase agreement, understanding the deal and being clear that the initial payment of $175 million had been paid.” (Footnote: ¹⁷⁴)

On 2 September 2015 Khun Lek, at Mr Suppipat’s request, (Footnote: ¹⁷⁵) set up a meeting at WEH’s offices in Bangkok on 3 September 2015, which it is common ground was attended by Khun Nuttawut, the WEH Managers and Khun Piphob, (Footnote: ¹⁷⁶) and the purpose of which was to discuss the call option economics. (Footnote: ¹⁷⁷) An agenda was never circulated. Khun Nop did not attend the meeting.

On the WEH Managers’ case (Footnote: ¹⁷⁸), this meeting involved the only material discussion in which they were involved regarding the call option. In cross-examination all three managers maintained that they were not otherwise involved in the call option negotiations. (Footnote: ¹⁷⁹) Whilst Mr Lakhaney and the other WEH Managers may not have advised on whether the call option was commercially viable or otherwise a “good deal” for either party (Footnote: ¹⁸⁰), their participation in this meeting again contradicts their evidence that they were kept out of the loop in regard to call option discussions.

It was Khun Piphob’s evidence that the focus of the meeting was the call option premium, which Khun Nuttawut insisted would not cover the alleged “costs and expense” of the deal (Footnote: ¹⁸¹). As Khun Piphob put it, the takeaway point from the meeting was: “I want more money” (Footnote: ¹⁸²). Regarding the WEH Managers’ reaction, Khun Piphob said that they “did not say anything…and they talk about their management fee…No, they did not help me…They did not say it [the CoA] is bad, they did not say it is good, they just sit there” (Footnote: ¹⁸³).

With regard to the WEH Managers:

It was the evidence of the WEH Managers that following their input, Khun Nuttawut indicated that the call option was commercially unfavourable. (Footnote: ¹⁹⁶) Khun Nuttawut’s evidence was that the WEH Managers explained the operation of the proposed call option, and that once the cost of finance and other matters were taken into account there was a significant risk that Khun Nop would lose money on the transaction. (Footnote: ¹⁹⁷) However, it appears to be common ground that no decision was made at the meeting not to enter into the call option.

Immediately after the 3 September meeting, Khun Piphob claims he met Khun Lek at a coffee shop (Footnote: ¹⁹⁸) and asked her to tell Mr Suppipat what had happened in the meeting (Footnote: ¹⁹⁹). Later, Khun Piphob called Mr Suppipat directly and explained what had been discussed during the meeting, questioning whether Mr Suppipat should still consider the WEH Managers to be working for him (Footnote: ²⁰⁰) in view of their complaints about changes to the structure of the ASA during the meeting (Footnote: ²⁰¹). According to Khun Piphob, Mr Suppipat said he would ask Khun Op to discuss the call option further with Khun Nuttawut. (Footnote: ²⁰²)

A message from Mr Lakhaney to Ms Collins on 4 September records that Khun Nuttawut telephoned Khun Thun and told him that Khun Op had spoken to him after the meeting and said that “we’ve all ganged up against him, especially [Mr Lakhaney]”. Similarly, Ms Collins’ unchallenged evidence (Footnote: ²⁰³) was that following the meeting Khun Op telephoned Mr Lakhaney and accused the WEH Managers of not supporting the USD 6 billion WEH valuation in Khun Op’s spreadsheet discussed at the meeting.

Mr Suppipat said in text messages to his ex-girlfriend, sent on 4 September, “They gang up against Op and I”; “The management is getting into bed with Kpn now”, “Might not get my company back”.

There is obviously a difference of recollection as to what took place at this meeting in Bangkok. In the absence of any documentary record of the same and the unreliable nature of much of the witness evidence in this case particularly on the part of the Defendants, I do not feel able to reach any firm conclusions as to whose recollection is to be believed or accepted as to what took place at the Bangkok meeting; but nor is it necessary for me to do so.

I consider, however, that it is no coincidence that Khun Nop and Khun Nuttawut only finally expressed their disinterest in the call option after the REC SPAs had been entered into and the shares transferred to Khun Nop. I find that that is because they never intended to enter into the call option and they dishonestly misled Mr Suppipat on those three occasions above (viz the Skype call, First Paris Meeting and Bangkok Meeting) into believing that they did so intend in order to induce him to transfer the valuable REC (and WEH) shares.

That opportunity to exploit Mr Suppipat’s weak negotiating position came to a head when Khun Nop spent 4 and 5 September 2015 with Mr Suppipat at Mr Suppipat’s villa in France. Although there is not complete agreement between the relevant witnesses, I find that there were two substantive conversations between Mr Suppipat and Khun Nop over two days, with Ms Collins witnessing the latter:

In both conversations, Mr Suppipat appears to have postulated a call option arrangement involving a 50/50 split of some variety.

It is Mr Suppipat’s evidence that Khun Nop questioned the financial attractiveness of the call option but only “as [an] excuse” (Footnote: ²⁰⁶). According to Mr Suppipat in his Witness Statement, a “lengthy negotiation” regarding “50% of any increase in the value of my shares above the purchase price” took place (Footnote: ²⁰⁷). In cross-examination, Mr Suppipat alleged:

“I remember this moment vividly because it was so disgusting, and I said: okay, maybe 25% is not enough for you, 25% of my future net worth, what do you want, do you want 30? And then he paused for a few second and then he said, he shook his head and said no. Oh, you want 35? No. 40? No. Okay, you know what, how about this, how about this. I give you half. But it needs to be half after the 700 million has been fulfilled. And he said okay. Okay. So that was the new agreement that I can have a bit of a question mark, you know, because I think 30% of my total net worth is likely to be more than 50% after 700, but again, my math was quicker than his, and maybe he doesn’t fully understand, but I keep on repeating though that, are you sure, it is 50/50 after 700, though. And he said yes, yes, yes. Okay, then we had a deal, we shook hand, and that is what I mean by we had a new deal.” (Footnote: ²⁰⁸)

I accept this evidence, despite the fact that in the arbitrations, Mr Suppipat had mistakenly thought that Khun Op and Ms Collins witnessed his and Khun Nop’s handshakes.

As such, Mr Suppipat claims that a revised call option scheme was agreed on 4 September. Similarly, it was Khun Op’s evidence that Mr Suppipat and Khun Nop spoke privately and, after this, Khun Nop told him, “I have reached a conclusion with Nick. Now I will split 50/50 with Nick, et cetera.” (Footnote: ²⁰⁹). According to Mr Suppipat, this agreement was then presented to Ms Collins the following day. I accept this evidence.

I therefore reject Khun Nop’s evidence that

“[Mr Suppipat] again tried to persuade me to agree the call option on the basis that it would be a good deal for everyone and everyone would make a lot of money and that we could split it 50-50” (Footnote: ²¹⁰)… I think I then politely declined the call option, and when I came back to Bangkok I formally said no through SC” and “my recollection remains that I clearly declined at the meeting”. (Footnote: ²¹¹)

This evidence is also contradicted by Mr Baker’s written record dated 29 September 2015 sent by Mr Suppipat to Khun Nuttawut and his response, referred to below.

The First Instalment under the KPN EH SPA ($89.25 million) fell due on 25 September 2015 but was not paid.

Khun Nop alleged in cross-examination that, at the date of the Second Paris Meeting on 26 September 2015 (see below), “We already have an idea where to line up the money”. When asked from whence the money was to be obtained, Khun Nop said “Various sources” but was evasive when asked to name them. He admitted there was nothing in writing evidencing any source of funds and that he was not in a position to pay “the full amount” of $89.25 million on 25 September, but could not remember “exactly how much” he was in a position to pay. (Footnote: ²¹²) I find that he knew that he could not source the money at this stage. He simply did not have it and did not have any access to it.

It appears that the WEH Managers had been working to assist Khun Nop in obtaining financing for USD 100 million of the USD 175 million First Instalments. The WEH Managers claim to have “continually tried to help Mr Narongdej to raise the financing required to pay the First Instalment” (Footnote: ²¹³) and “[t]here was a conscious effort … to help KPN Group and Mr Narongdej to raise the requisite finance” (Footnote: ²¹⁴). Khun Thun’s evidence was that he never asked how much Khun Nop had available to contribute to the transaction (Footnote: ²¹⁵), but “I was told that we need to help raise $100 million out of 175 million” (Footnote: ²¹⁶). There is contemporaneous evidence of meetings and correspondence with Bank of America Merrill Lynch and Credit Suisse, the Malaysian bank Maybank, and ABN AMRO.

On 7 September 2015, Mr Lakhaney emailed Ms Collins and Khun Thun with a financing update, noting that whilst matters with BAML and Credit Suisse were at that point moving forward, they had “big issues internally getting clearance to pay [Mr. Suppipat]”, which was “a combination of KYC/AML together with ensuring they won’t face issues in Thailand going forward”, and a number of other banks had “politely said “not this one””. In a further update on 10 September 2015, Mr Lakhaney stated that Standard Chartered had “said no”, partly on the basis that they had an “NS issue”.

A term sheet was obtained from BAML and Credit Suisse in August 2015 but ultimately satisfactory terms could not be negotiated. Khun Nop and Khun Nuttawut were informed of the likely failure of those negotiations on 20 October 2015, and the banks’ proposed terms were declined on behalf of Khun Nop on 27 October. Meanwhile, Khun Nop continued to pursue potential funding, including from ABN AMRO.

The WEH Managers were ultimately unsuccessful. The Defendants contend that the reasons for this were (i) the banks’ concerns about lending money “that … would be used to pay a fugitive” and (ii) whether and if so how KPN would finance the remaining $75 million. (Footnote: ²¹⁷) I accept this; however, reason (ii) is a notable admission which highlights the undeniable lack of liquidity on the part of Khun Nop.

Khun Nuttawut suggested for the first time in cross-examination that he had obtained signed term sheets from lenders willing to finance the First Instalments prior to 26 September 2015 (Footnote: ²¹⁸). Taken in cross-examination to his 7 February 2016 witness statement in the Arbitrations, in which he said that he and Khun Nop had “prepared” the full USD 175m by the new deadline of 31 January 2016, Khun Nuttawut backtracked, saying “What I mean is that we can raise 175 million” (Footnote: ²¹⁹) and “I have some term sheet, I have some commitment” (Footnote: ²²⁰).

In cross-examination, Khun Thun referred for the first time to an unsigned term sheet from a company whom he referred to as “MBK Guarantee” (MBK), but could not recall whether he had received a copy of it or any specific details of its terms and admitted this was not a final offer of funding (Footnote: ²²¹). Further, he confirmed that he remembered this detail only on listening to Khun Nuttawut’s evidence, in which Khun Nuttawut had referred to an alleged term sheet provided by MBK and various other lenders (Footnote: ²²²): “Yes, I didn’t remember it [when preparing his witness statement]. But when Khun Nuttawut mentioned the name I did” (Footnote: ²²³).

An unsigned MBK Guarantee term sheet was then disclosed by Signature Litigation after Khun Nuttawut and Khun Thun had given their oral evidence to the court. The Defendants have not, however, disclosed a signed term sheet in respect of such lending. Khun Thun conceded, during his cross-examination, that MBK’s terms were “never acceptable” and “need[ed] to be renegotiated” (Footnote: ²²⁴).

It follows that any suggestion that funding had been secured through MBK was false.

The Claimants’ case is that on two occasions (i) at a second meeting in Paris on 26 September 2015, and (ii) on a telephone call between Khun Nuttawut and Mr Suppipat on 6 November 2015, Khun Nop and Khun Nuttawut made the so-called “Payment Representations”, and thereby secured Mr Suppipat’s forbearance from rescinding the REC SPAs for non-payment (see below).

On 26 September 2015, a meeting took place in Paris at the Hotel George V (the Second Paris Meeting) between Mr Suppipat, Mr Baker, Khun Nop and Khun Nuttawut. The meeting was conducted in Thai and, as such, it is common ground that Mr Baker (who does not speak Thai) was not an active participant.

Mr Suppipat alleges that, at this meeting, Khun Nop reneged on Part B of the COA. I accept that evidence. Mr Suppipat explained in cross-examination:

“A. When you know they have no money and they renege on call option, hence there is no equity that I am going to assist them with any longer, you know that you are going to get nothing or you are likely to get nothing. So you think of how to unwind this so you can find the next buyer, you go back to someone like Equis and say: I am so sorry, let’s do the deal, even if this is a little bit late; but it is not too late.” (Footnote: ²²⁵)

The Claimants’ case is that, after Mr Suppipat posited unwinding the REC SPAs, Khun Nop and Khun Nuttawut represented that:

On 29 September 2015, Mr Suppipat sent to Khun Nuttawut Mr Baker’s written record of the meeting. This is the only contemporaneous record of the meeting and it sets out that an agreement had been reached in Paris on “Sunday”, according to which:

“[Mr Suppipat] and [Khun] Nop agreed to set aside the second leg (which [Mr Suppiapt] and [Khun] Nop referred to as “part B” of the deal), so that the Sellers will not fund the initial USD75 million of equity and the Purchaser will not enter into the call option with the Seller, on condition that:

The first Purchase Price instalments under the SPA’s (USD 175 million plus interest) are made in full no later than 26 November 2015 … interest will be calculated at the 15% per annum rate…

Nop (i) acquire 3.25% of WEH (directly or through an affiliate) from Pradej and (ii) transfer half of those WEH shares to your designee (for no consideration);”

Khun Nuttawut responded to this email, “Noted with thanks krub”. This indicates that, contrary to Khun Nop’s evidence, Khun Nop had not refused point blank to enter into the call option at the meeting in Cannes. Further, this email exchange supports Mr Suppipat’s account that Parts A (share purchase sale) and B (call option) were two halves of one overall deal and in Paris at this second meeting the parties agreed that Part B would be set aside but only conditionally, the main condition being that Khun Nop would make full payment of the first purchase price instalment for the shares of US$175 million by 26 November 2015 and pay interest at a rate of 15%.

With regard to the acquisition from Khun Pradej, Mr Suppipat explained in his Fourth Witness Statement at paragraph 77: “I thought it was fair that Nop and I would split those shares between us 50/50: Nop was in the position to force Pradej’s hand by saying he could list REC and not WEH in the same way that I could have done in 2014, which would mean that Pradej would not get the full benefit of his WEH shares, and also would not get the shares held by REC in DD Mart”.

When asked why, if the funds were already available to Khun Nop, it was necessary on 26 September to rearrange the date for the payment of funds which did not fall due until 23 October, Khun Nuttawut said “I don’t remember now”. (Footnote: ²²⁹) I find that the reason was, of course, that the funds were not available.

However, Mr Baker’s written record does not support the Claimants’ case that the First Payment Representations were made. There is no contemporaneous documentary evidence that any of these representations were made. In the circumstances, I find that they were not made.

On the Defendants’ case, Khun Nuttawut telephoned Mr Suppipat on 3 November 2015, to request further time beyond the previously discussed deadline, proposing that $75 million of the KPN EH First Instalment be paid by 26 November, the balance of the KPN EH First Instalment by 15 December, and the Fullerton First Instalment by 31 January 2016. (Footnote: ²³⁰)

Mr Suppipat sent the following text message to Khun Nuttawut two days later on 5 November: “Btw. I think I might be able to waive you the interest on the 175 m for period between the closing dates to nov 26 given that 75m is paid before nov 26 and 14m is paid by dec 15th and the rest by jan 31. Will send you an email on the details to confirm this in a day or two na krub.”

Mr Suppipat alleges that, on 6 November 2015, he spoke to Khun Nuttawut over the telephone. During this call, Khun Nuttawut allegedly sought a further payment extension with respect to USD 100 million of the First Instalments, saying that Khun Nop’s Companies had secured USD 75 million, which they would pay by 26 November 2015, and could secure the remaining USD 100 million at least in part by Khun Nop’s or his family’s own equity and in time to pay it by 31 January 2016 (“Second Payment Representations”).

Therefore, on the Claimants’ case, Mr Suppipat agreed that he would not seek to unwind the REC SPAs provided Khun Nop paid: (Footnote: ²³¹)

In his witness statement Mr Suppipat fails adequately to support the Claimants’ pleaded case as to the alleged representations on a 6 November phone call, admitting that “I do not now specifically recall that discussion”, simply referring to his 10 November email. (Footnote: ²³²) Khun Nuttawut’s evidence is that he did represent that US$75m had now been obtained and that the remaining US$100m would not be available until January 2016 (Footnote: ²³³), but that he made no representations as to how the payments would be funded (Footnote: ²³⁴).

In a text message of 8 November 2015 to Ms Collins, Mr Lakhaney explained that, “Nuttawut told Thun money looking good by end of the month – still not sure where from but seems like borrowing from Nop/Nutt connections”. The following day, he sent Ms Collins a further update: “So interesting day. Our friend sent Nuttawut an email on payment terms, not a nice email, so I don’t think he has a deal with Nuttawut”. When asked whether he ever saw any material which suggested to him that Khun Nop might have the money to pay the First Instalments, Mr Lakhaney said “No” (Footnote: ²³⁵).

On 10 November 2015, Mr Suppipat emailed Khun Nuttawut noting that, during a call that week, he had been asked by Khun Nuttawut to accept a further deferral of $100 million and to waive interest on the late payments. Mr Suppipat said, “I conditionally accepted to set aside so called Part B of our agreement (or the call option) and to postpone the First Payment …ONLY because you promised that the Purchaser would make the First Payment in full, plus interest…on 26 Nov 2015 AND because you promised to try to find an acceptable solution with Pradej and deliver me half of the proceed”. Further, Mr Suppipat stated: “You are now telling me that you can come up with only around 75M USD by Nov 26 but the 100M USD won’t be ready before New Year 2016.” That is not consistent with the pleaded misrepresentation that there was an intention to make payment in accordance with the revised schedule proposed by Khun Nuttawut on 3 November, including the balance of the KPN EH First Instalment by 15 December (i.e. earlier) and the Fullerton First Instalment by 31 January 2016 (i.e. later). However, on the basis they were trying their best to secure funding, Mr Suppipat agreed to accept the further deferral of payment, but not to waive interest.

Mr Suppipat set out the “conditions on the postponement and the payment schedule”, providing the dates on which 5 separate payments should be made. Payment (5) is “One half of the gross proceed from the negotiations with Pradej in WEH shares (should be no less than 1.75M shares) handed over before Dec 31 2015”. Khun Nuttawut responded the following day, “I’ll give you a call soon on my opinion about the payment term krub. However, regarding (5) I don’t think this is coincide with our earlier discussion. We agree to split half/half and we never agree on time line of this issue.”

In short, there is no reliable documentary evidence to support the suggestion that the Second Payment Representations were made to Mr Suppipat and relied upon by him and I find that they were not.

Fullerton failed to pay the First Instalments by 26 November 2015. However, on that day at 7:40pm Bangkok time, Khun Nuttawut sent a text message to Mr Suppipat stating: “I’d like to inform you that I’ve transferred the principal amount of $75M to your instructed account today.”

In fact, on 30 November 2015, KPN EH only paid $44,727,736.58 to NGI and $15,272,168.00 to DLV under the KPN EH SPA.

The Claimants maintain and I accept that these under-payments did not discharge the obligations of Khun Nop’s Companies. Moreover, they were (i) not paid on time and (ii) did not include all of the interest to be paid in respect of the principal amounts, as agreed during the Second Paris Meeting.

On 9 December 2015 letters entitled “Notice of Default – Failure to Pay the First Instalment of the Purchase Price and related late payment interests under the Share Purchase Agreement” were served on KPN EH and Fullerton. These purport to revoke the revised payment dates on the basis that there had been a failure by KPN EH and Fullerton to pay by those revised dates.

Fullerton responded on 25 December 2015 objecting to the revocation of the revised payment dates and insisting that the due date remained 31 January 2016. It stated: “Fullerton remains determined to make the required payment for the shares. To demonstrate its good faith, Fullerton will use its best efforts to pay the requested sum in the amount of US$ 85,750,000, together with interest at the rate prescribed under the SPA, calculated from 9 December 2015 (the date Fullerton was first provided with revised payment dates) by 31 January 2016.”

On 25 December 2015, Khun Arthid attended a dinner with Khun Nop (listed in his calendar as: “Home Dinner with K. Sorapoj, K. Moo Milcon, K. Nop Narongdej, K. Charn Bulkul”).

On 29 December 2015, KPN EH paid a further $452,682.45 to NGI and $30,062,692.55 to DLV under the KPN EH SPA. However, the remaining sums due under the KPN EH SPA were never paid; and nothing at all was paid under the Fullerton SPA.

In cross-examination, when asked about the source of the money which KPN paid in 2015, Khun Nop admitted that a significant source was WEH itself, through intercompany loans which were dishonestly and falsely recorded in the accounts of WEH.

As to this, payments were made from WEH to KPN EH between 23 November 2015 and 24 January 2016. This was later discovered by the auditors of WEH, Grant Thornton, who were engaged on 12 September 2016.

Grant Thornton found that “[d]eceptive conduct occurred by the retrospective preparation of Bills of Exchange…for the 464m, which were issued in the name of a third party instead of KPN”. The report concluded that “there is evidence that accounting documents were retroactively put in place for the purpose of deceiving a potential user of financial [sic] and then to deceive the auditors KPMG” (KPMG were acting as WEH’s auditors at the time). Further, Grant Thornton recorded that: “Khun Thun and Khun Nuttawut advised that the KPN payments did not need Board approval but instead approval of the Executive Committee to which authority had been delegated by the board. They advised that KPN payments were approved by Executive Committee members Khun Thun, Khun Nuttawut and Khun Nop. We understand that this approval was not documented” (emphasis added).

Funds were misappropriated from WEH to allow KPN to pay Mr Suppipat’s companies under the REC SPAs. This was, I find, seriously dishonest conduct on the part of Khun Thun, Khun Nuttawut and Khun Nop.

In his Witness Statement, Khun Thun agrees with and accepts Grant Thornton’s findings (Footnote: ²³⁶). He had little choice but to do so. In cross-examination, Khun Nop admitted that these payments were for his benefit and attempted to justify the concealment on the basis that he feared the information (concerning payments to Mr Suppipat) becoming public. I reject that excuse for his dishonest conduct.

In cross-examination, Khun Nop said as follows:

“Q. So it is clear, it is your evidence to my Lord that without your knowledge or consent, Khun Nuttawut and Khun Thun had the entries in WEH's accounts falsified to conceal the fact that loans were made to enable you to make payments to Mr Suppipat. Is that right?

A. (Interpreted) Yes, I was aware of that, and I had no intention to cause any damage but my intention -- but our intention is to raise the fund to pay Nopporn, and if there were -- if mistakes occurred, yes, I apologise.

Q. I want to be very clear about your evidence. You say "I was aware"; does that mean that you accept that you were aware at the time of the false entries, or are you still saying that you only discovered it later?

A. (Interpreted) At the time of the -- this was recorded, I wasn't aware. I became aware later on.”

The following day, Khun Nop said as follows:

“Q. Yes, let's look at {G6/232/19}. If we look at paragraph 4.2: "As a consequence ..." "4. Conclusions. "The above findings provide evidence which supports the following allegations: "... payments from WEH to KPN and receipts from KPN did occur ..." No supporting documentation; retrospective preparation of bills of exchange; bills of exchange issued to a third party instead of KPN; provision of the bills of exchange to the then WEH auditors KPMG. "As a consequence of the above, there is evidence that accounting documents were retroactively put in place for the purpose of deceiving a potential user of financial and to deceive the then auditors ..." Bills of exchange intentionally used to hide the fact that WEH funds had been loaned to KPN for the purpose of assisting KPN finance the purchase of shares. The draft financial accounts disclose the outstanding loan balance, as other receivables, instead of the required disclosure of shareholder loans. This was done without the consent of the board of WEH, was it not?

A. I don't remember exactly.

Q: So you knew about it?

A: I knew when this incident happened.

Q: Yes?

A: Yes.

Q: And you knew that monies were being taken from WEH in order to fund your purchase of the REC shares?

A: Yes.

Q: And you knew that false bills of exchange were being put into the books?

A: I know that it’s not properly done, and the reason is because we are afraid of the attack on the social media.” (Footnote: ²³⁷)

It follows that Khun Nop eventually accepted that he was aware of this dishonest conduct at the time. I find that he was aware of it and sanctioned it. The reference to social media was a spurious excuse.

Khun Nop initially said he could not recall whether the board of WEH had approved these transactions. On being asked, “You must know presumably whether or not the board of WEH approved this behaviour”, he said: “I don’t remember exactly, my Lord, but I would guess that I spoke to the board member” (Footnote: ²³⁸). I find that that was a lie: on being taken to paragraph 3.15 of Grant Thornton’s report, which records that Khun Thun and Khun Nuttawut “advised that KPN payments were approved by Executive Committee members Khun Thun, Khun Nuttawut and Khun Nop. We understand that this approval was not documented”, Khun Nop immediately changed his evidence, saying “I admitted that we approved that, and the reason behind that is at that time we are afraid of the media campaign” (Footnote: ²³⁹):

“MR JUSTICE CALVER: So this is the answer to the question that I put to you.

A: Yes, I accept that, my Lord.

MR JUSTICE CALVER: Had you forgotten this when I asked you my question just now, had you forgotten about this?

A: Spoken about what, board member −−

MR JUSTICE CALVER: When I asked you just now whether or not the board had approved these payments, you said that you didn’t remember.

A: Now I remember clearly, my Lord, after I look at the document.” (Footnote: ²⁴⁰)

I find that Khun Nop’s use of the WEH funds in this way was thoroughly dishonest and that he was assisted by Khun Thun and Khun Nuttawut who were also dishonest. The suggestion that this dishonest conduct was carried out because of fears concerning Mr Suppipat’s media campaign is spurious.

It was Ms Collins’ evidence that she was not aware of this use of the bills of exchange until March 2016. I accept that evidence.

It is alleged by the Claimants that “on or around 10 November 2017, SCB (with the involvement of the WEH Managers and it is inferred NN) persuaded [WEH’s] auditors (Grant Thornton) to suppress their conclusion that the Kasem Transfer was not at fair value. SCB persuaded Grant Thornton to “park” the question of whether the transfer to Kasem was at an undervalue until an SEC filing was required.” (Footnote: ²⁴¹) However, SCB was unable to find any disclosable documents relevant to this allegation and none of SCB’s witnesses had any evidence to give concerning it either. Nor were any allegations in connection with this put to any of SCB’s witnesses in cross-examination (Footnote: ²⁴²) and I accordingly reject this serious allegation.

In an email of 8 January 2016 to Khun Nop and Khun Nuttawut among others, Mr Suppipat set out his “stance”. He described how:

“When we met in Paris on 26 September, I made it very clear that I’d like to have my company back because you refused to honour our deal – I now understood that you had tricked me and that you did not want to work together and act as my nominee”.

He also highlighted how they have “failed to meet the payment obligation in full on November 26”.

As such, Mr Suppipat said:

“…as you are obviously super stretched from struggling to fund the payments due by KPN EH, it is clear that Fullerton has not raised any equity or debt and that is why it cannot pay the First Payment, plus interest, due to Symphony. Fullerton has no money… I see no solution now for the Fullerton / Symphony sale other than to reverse the sale, and for Fullerton to make Symphony whole for the damages suffered….”

Mr Suppipat explained that he had “instructed [his] lawyers to initiate proceedings to recover [the] amounts owed by KPN EH to NGI and DLV” and “seek injunctive relief to protect REC and Symphony’s interest in REC”.

As for the WEH Managers, he stated that he was “very deeply disappointed with my former managements [sic]” for either being involved in the conduct about which he was complaining, or for allowing it to happen at all.

Mr Suppipat’s account in this email is, I find, materially accurate and truthful. Of course, at this stage Mr Suppipat was unaware of Khun Thun’s involvement in the dishonest use of WEH’s funds to meet KPN EH’s debts.

On 8 January 2016, Symphony issued a Notice of Rescission to Fullerton seeking recovery of the REC shares on the basis that Symphony had not received payment of the First Instalment of US$85,750,000 due by 23 October 2015, which constituted total non-performance of Fullerton’s obligations under the Fullerton SPA.

On 11 January 2016, SCB circulated internally a draft Financial Advisory Committee “approval memo” for the IPO, setting out SCB’s ambitions for strengthening its relationship with WEH and the advantages of that relationship. It is clear that SCB at this stage were still intending the IPO to go ahead as planned.

Khun Arthid’s diary had a calendar entry for a meeting with Khun Nop scheduled for 15 January 2016. Khun Arthid claimed: “It doesn’t guarantee – it doesn’t mean that it is a real meeting.” (Footnote: ²⁴³) Khun Parnu said “I don’t believe I see something” (Footnote: ²⁴⁴) in writing from the bank referring to any such meeting and Khun Wallaya denied that she was “aware of the existence of contact between Khun Arthid and Khun Nop …” (Footnote: ²⁴⁵). Khun Arthid’s evidence was that he was not told by Khun Nop about Mr Suppipat’s threat to rescind the REC SPAs, at least at this stage (Footnote: ²⁴⁶).

Further, Khun Nop’s calendar suggests that he may have had a meeting with Dr Vichit on 22 January 2016. Khun Arthid’s evidence was that he did not know whether this meeting in fact happened, but that he did at some stage discuss Khun Nop’s non-payment with Dr Vichit (Footnote: ²⁴⁷).

On 26 January 2016, Symphony filed a Request for Arbitration against Fullerton under the Fullerton SPA (the Symphony Arbitration). NGI/DLV filed their Request against KPN EH on 25 March 2016 (see below).

On the same date, 26 January 2016, Mr Suppipat’s Companies applied in the arbitrations for Emergency Measures, including an injunction prohibiting Fullerton from disposing or pledging the REC shares transferred under the Fullerton SPA.

That same month, WCP commenced acting for Fullerton as its Thai counsel. According to Khun Weerawong, he met Khun Nop for the first time in or about early 2016 when he was approached by Khun Phisit (the head of WCP’s dispute resolution department) to assist in identifying appropriate representation for Khun Nop’s companies in respect of the Symphony arbitration. (Footnote: ²⁴⁸) Khun Weerawong alleges that he was subsequently briefed to assist WEH in finding a solution to the funding issues which arose because of the arbitration.

On 28 January 2016, a letter headed “Re: Notice of breach under the advisory services agreement dated June 25, 2015’” was sent from NGI to Ms Collins, Khun Thun and Ms Siddique. This drew their attention to their obligations under the KPN EH SHA and REC SHA: “…we would like to draw your attention to the fact that any sale by Fullerton of REC shares is (x) contrary to Clause 10.3 of the SPA and (y) subject to approval of KPN pursuant to the REC Shareholders Agreement and (z) a Reserved Matter subject to your control pursuant to the KPN Shareholders’ Agreement. We hereby formally notify you that any such sale of REC shares by Fullerton can therefore only be achieved in breach of your obligations pursuant to the [ASA]….”

On 28 January 2016, Ms Collins texted Mr Lakhaney: “Guys, meeting w Nop and Nuttawutt this morning at KPN Energy 10.30am. Thanks. Thun (that’s all I know)”. Nothing has been disclosed or otherwise revealed about what happened at that meeting (Footnote: ²⁴⁹). It is likely that it was to discuss the arbitration and payment issues. It is suspicious that this meeting took place without Mr Suppipat’s apparent knowledge.

The meeting fell on the same day (28 January 2016) that upon the application by Symphony in Claim No. BVIHC (Com) 2016/0016 in the High Court of the BVI, Mr Justice Farara granted an interim freezing injunction restraining Fullerton from “selling, pledging, dealing with, charging or otherwise disposing of shares in [REC]” (BVI Injunction).

In an email dated 2 February 2016, sent by Mr Lakhaney to Omar at the Abraaj Group (being his former employer), he stated: “Mentioned arbitration that NS has started…Also stated that NS can’t win and is a sore seller, but KPN went out of their way to do the deal and put their reputation on the line….”. He continued: “[Mr Suppipat] had entered into a transaction with [Khun Nop], had together with [Khun Op] tried to push a call option deal that was not commercially reasonable, and then agreed to move forward with the SPAs without the call option, and now was trying to attempt to get his company back because he wasn’t happy with the terms at which he sold it.” (Footnote: ²⁵⁰)

This was an unfair and inaccurate characterisation of Mr Suppipat’s position and illustrates where Mr Lakhaney’s loyalties now lay. The true position, as Mr Lakhaney knew, was that Khun Nop had failed to honour his payment obligations. Indeed, Khun Nop was stealing from WEH in order to part-comply with those obligations as (at least) Khun Thun knew.

The WEH Managers responded to Mr Suppipat’s letter on 15 February 2016, rejecting any suggestion they had breached the ASA. NGI replied on 2 March 2016, reasserting its position. Meanwhile, a letter dated 28 January 2016 had been sent by Symphony to Gunkul Engineering Public Co Ltd regarding their attempted purchase of REC shares and “put[ting them] on notice that the ownership of the Shares is the subjective of an ongoing ICC arbitration”.

I consider that Mr Suppipat’s conduct at this time was not unreasonable. It was around this time in early 2016, that Mr Suppipat met Mr Marshall in Paris and devised a media strategy to try to embarrass Khun Nop into complying with the obligations under the REC SPAs. (Footnote: ²⁵¹)

This included Mr Suppipat issuing an anonymous letter to WEH’s management, auditors, shareholders and the media, being purportedly sent by concerned employees of WEH to Mr Suppipat, setting out various allegations of wrongdoing within and in connection with WEH (the Anonymous Letter).

He also issued letters dated 29 April 2016 to WEH’s directors and shareholders based upon information given to him by Asama Thanyapan. She was a former account manager at WEH, who resigned from WEH and issued letters to WEH’s directors and its shareholders, both dated 29 April 2016, citing misconduct at WEH (Ms Asama’s Letters). Specifically, she alleged that KPN EH had made substantial withdrawals from WEH’s bank account during the period November 2015 to February 2016, which were subsequently labelled as loans, and that there had been an attempt to conceal the loans to KPN EH from WEH’s auditor, KPMG, by falsifying documents. That, of course, was shown to be wholly true.

Mr Suppipat explained in his oral evidence that he “encouraged” Ms Asama to resign (and to send Ms Asama’s Letters) and made it easier for her to “take this plunge” by first issuing the anonymous letter, (Footnote: ²⁵²) but he did not pressure her into doing so. (Footnote: ²⁵³) I accept that evidence.

Contrary to the submissions of Khun Nop, I do not consider that this media strategy was the root cause of WEH’s problems; nor do I consider it to have been a blameworthy strategy to adopt. Rather, at that point in time Mr Suppipat was at his wits’ end: Khun Nop and Khun Nuttawut had reneged on Part B of the Global Transaction; large sums to which Mr Suppipat’s Companies were entitled under the REC SPAs – totalling US$85 million plus interest – remained unpaid; and it had emerged that Khun Nop was trying to sell the Relevant WEH Shares without Mr Suppipat’s Companies’ consent. Moreover, Mr Suppipat had discovered, through his contacts at WEH, that Khun Nop was using WEH’s funds for his own benefit and abusing company property. (Footnote: ²⁵⁴)

Indeed, Khun Nop adopted a similar tactic to Mr Suppipat. On 28 June 2016, Mr Lakhaney emailed Khun Nop and Khun Nuttawut, copying in Khun Thun and Ms Collins, attaching “anonymous letters – one from an employee and one from a minority shareholder”. He explains that the first of these was “drafted from the “same employees” that sent the first 2 letters and drafted with the same tone/language used”. The latter was “primarily about Nick’s close relationship with Dr K, money Dr K has been getting, and how Dr K + Nick’s family seem to be working against the company”. Mr Lakhaney added that: “Thun – need you to fill in some numbers here which I don’t have”. In cross-examination, Mr Lakhaney admitted that these letters were false and had been drafted by him.

It is common ground that “SCB learned of Symphony’s rescission claim in or about January 2016.” In particular, the SCB witnesses each admit that they were aware of the arbitrations in “early 2016” (Footnote: ²⁵⁵) and it is clear from Khun Parnu’s evidence that SCB was aware that the arbitral dispute had arisen from non-payment of the principal sums due under the SPA:

“Q…In early 2016, you discovered, did you not, that the 175 million had not in fact been paid…?

A. Yes.” (Footnote: ²⁵⁶)

Khun Arthid set out in his First Witness Statement that, “Soon after SCB had agreed in principle to provide finance to Watabak and the other wind projects, I recall that Khun Nop informed me that a dispute had arisen with Khun Nopporn concerning the purchase of the REC shares. I do not remember exactly when Khun Nop told me about the dispute with Khun Nopporn. As I recollect, at that stage it concerned a disagreement about the calculation and payment of interest under the share purchase agreements.”

There is ample documentary evidence of meetings between SCB, Khun Arthid and WEH during this period. On 26 and 27 January 2016, Khun Arthid held discussions in respect of KPN although it is unclear what was discussed. (Footnote: ²⁵⁷) Further, on 27 January 2016, SCB was looking to get Khun Thun to agree to a mandate for SCB to act as sole Financial Advisor and Underwriter for the WEH IPO. This later made provision for an all-in success fee for SCB of 2.25%. Also on 27 January, there was a New Year’s party at Khun Nop’s house which was noted in Khun Arthid’s diary as “New year party with SCB Team” at “K Nop. Narongdej’s house”. Khun Arthid confirmed that he “went to Khun Nop’s house with a big group of people once” although he could not confirm that it was on 27 January. (Footnote: ²⁵⁸) If this is right this somewhat undermines Khun Arthid’s insistence that he has always had a purely professional relationship with Khun Nop:

“Q. Did you at some stage develop a friendship with Khun Nop?

A. It is a customer and banker.

Q. Did you at any stage develop a friendship with him?

A. I didn't.

Q. You didn't?

A. No.

Q. When you met him was it therefore, apart from the meeting with his father, was it on business only?

A. It's on the business only.

Q. So every time there was a meeting with him, you were discussing business, correct?

A. Meeting with Khun Nop.

Q. Khun Nop, yes?

A. Yes.” (Footnote: ²⁵⁹)

In cross-examination, Khun Arthid continued to insist that he was unable to remember exactly when he spoke to Khun Nop but admitted that: “I think … I fully aware of dispute before it went to arbitration, and I cannot recall and understand or remember why it did not go to the credit committee” (emphasis added). Since the arbitration claim was made in January 2016, this timeline contradicts Khun Arthid’s Re-Re-Re-Amended Defence where he pleads that, “[i]n or around March or April 2016, Khun Arthid was informed by the SCB team that a dispute had arisen between NS’s companies and NN’s companies”. Khun Arthid attempted to explain this inconsistency on the basis, “I may confuse the time” in the Defence.

Khun Arthid admitted in cross-examination that he inferred that Khun Nop had not paid Mr Suppipat under the REC SPAs because he did not have the money and had not been able to raise it: “Khun Nop didn’t tell me about this; it is just my common sense….our guess is, my guess is that he doesn’t have the money or enough money, and also my guess is he cannot be able to raise the money.” (Footnote: ²⁶⁰) Khun Arthid later reiterated his claim that he understood the dispute was related only to the payment of interest rather than principal: “the problem is not about didn’t pay or pay. It’s about the way they calculate or they have the dispute on the interest or the account, which I couldn’t recall exactly…” (Footnote: ²⁶¹). However, none of the documentary evidence suggests either that it was a dispute solely about interest or that there was any credible basis upon which Khun Arthid could have drawn that conclusion. (Footnote: ²⁶²) When put to Khun Arthid that he was well aware that there was also USD 87.5m of principal which had not been paid, he was evasive “I couldn’t recall on this one” (Footnote: ²⁶³) and “I didn’t make that conclusion” (Footnote: ²⁶⁴).

In all the circumstances I find as a fact that Khun Arthid knew in January 2016 that the dispute had arisen by reason of Khun Nop’s non-payment of the principal sums due under the SPA and not merely by reason of a dispute regarding interest.

SCB’s reaction to Mr Suppipat’s rescission claims in the 2016 Symphony Arbitration was another subject of controversy. The Defendants’ position is that SCB was unwilling to finance WEH and Watabak in light of the possibility of Mr Suppipat’s return, such that the value of the WEH shares at the point in time when they were sold on to Dr Kasem was significantly reduced.

It is common ground that “in March 2016, SCB refused to sign or allow WEH to draw down on the Watabak Facility, and refused to discuss financing for the Future Projects.” This was an informal stance rather than a minuted stance of SCB. However, the question is whether this was SCB’s stance throughout, and in particular between January 2016 (when it found out about the arbitration) and March 2016. If it was not, it raises the question as to whether SCB’s refusal in March 2016 was designed to facilitate the false suggestion that the WEH shares had to be urgently sold to Dr Kasem/Madam Boonyachinda.

None of SCB, Khun Nop, Khun Nuttawut, Khun Arthid, Khun Weerawong or the WEH Managers has produced a single document (contemporaneous or otherwise) evidencing SCB’s stance in early 2016. Furthermore, the 2-3 month delay from SCB gaining knowledge of the arbitration in January 2016 to SCB making this decision is noteworthy considering SCB’s extremely swift response when Mr Suppipat was charged with his lèse-majesté offence – as set out above, a copy of Mr Suppipat’s arrest warrant was circulated on 1 December 2014 and an ExCom meeting took place the following day in order to consider the withdrawal of credit facilities for new WEH projects.

Indeed, on SCB’s own case, the dispute over payment of the initial REC SPA instalments was “hardly a crisis because the bank had known from the outset that [Khun Nop] would need to raise money from third parties to make the “milestone” payments under the REC SPAs” (Footnote: ²⁶⁵). Further, Khun Arthid gave evidence, when asked about what he and Dr Vichit decided to do about Khun Nop’s failure to pay, that: “Normally when the problem happened with the customer, we always wait and see how the customer fix the problem. We cannot just go tick, tick, tick and just -- if the customer cannot do this we have to jump and chew the deal right away. I think we wait and see how the customer try to solve the problem.” (Footnote: ²⁶⁶)

SCB’s witnesses maintained that they communicated to WEH (by way of a telephone conversation between Khun Parnu and Khun Thun) that in light of Mr Suppipat’s rescission claim, SCB would not permit drawdown on the Watabak facility. As such the lending process was suspended, although not formally. (Footnote: ²⁶⁷) Khun Thun explained: “I couldn’t recall specific word, but the essence was that the bank got very concerned about the rescission claims, because of the whole basis of, the whole basis of the bank entering into loan agreements for Watabak was that there was no risk of Mr Suppipat coming back into the picture.” (Footnote: ²⁶⁸) Ms Collins recounted: “So in 2016 the first problem we had was SCB refusing to fund projects because of the rescission claim, and obviously the risk that Nick would come back would mean that we wouldn’t be able to raise financing.” (Footnote: ²⁶⁹)

There is no evidence of Khun Nop’s default on payment being escalated to the Credit Committee or ExCom (Footnote: ²⁷⁰) until May 2016, despite it being common ground that SCB was aware of the arbitration in January 2016. There are no records of any meetings whatsoever, at any level, during the 2015 period where the conduct of Khun Nop was discussed or concerns were ventilated including as to the defaults in payment or where there was discussion of (i) the apparent inability to pay and (ii) the false assertion made to the bank that Mr Suppipat had been paid (which would have been relevant to the question of whether Mr Suppipat had cause to pursue Khun Nop and ask for his shares back). (Footnote: ²⁷¹) SCB argues that it can be “quite certain” that there was no discussion of the dispute within its committee structure earlier than May 2016 for three reasons – (i) discussions are minuted and recorded, (ii) the drafting technique SCB uses of each resolution referring to a previous resolution and (iii) the bureaucratic structure around the Credit Committee and the ExCom means that a referral of a matter to these committees generates a significant amount of paperwork (Footnote: ²⁷²).

SCB’s position is that, aside from its informal stance, drawdown on the Watabak facility could not happen in any event because a number of conditions precedent were unfulfilled and events of default had not been waived by SCB (Footnote: ²⁷³). The conditions included the obligation to enter into an Equity Contribution Agreement (ECA), the purpose of which was to ensure that WEH, as the shareholder of Watabak, would contribute equity as and when required for the project. Khun Supalun records that the Business Relations Division (BRD) decided to hold off executing the ECA until the bank had assessed the risk arising from the dispute in more detail (Footnote: ²⁷⁴). This evidence was not challenged and I accept it. Khun Parnu adds that the BRD also had significant concerns at this time about Watabak’s failure to comply with a share pledge obligation because Khun Somphote and Khun Amorn were refusing to allow their shares to be pledged to SCB, an issue which took up more of his time than the issue created by the Arbitrations (Footnote: ²⁷⁵). This evidence, which I accept, was also not challenged. As such, SCB submits that the decision to suspend drawdown was not a formal decision which needed to be taken by the Credit Committee or the ExCom, but simply a recognition by the CMD, BRD and RMD that progressing the other issues would not unlock drawdown until the issues created by the Symphony Arbitration had been resolved (Footnote: ²⁷⁶).

As such, Khun Parnu gave evidence that: “I recall that others at SCB … were concerned that the arbitration presented a substantial risk that Khun Nopporn would return as shareholder of REC … I also recall that SCB’s legal department was investigating this issue. I recall being concerned that the arbitration would delay WEH’s attempts to do an IPO to raise new funds and therefore negatively impact the Bank’s own current and potential future lending to WEH and its subsidiaries; and that if Khun Nopporn did return this would generate the risk of damaging SCB’s reputation. For as long as such a risk was going to persist, I do not think that we (my team, CM and Risk Management) at SCB would have sought the Credit Committee’s approval to waive the outstanding conditions precedent to drawdown, and until that happened drawdown could not take place. Drawdown on the Watabak Facility was therefore effectively suspended until these issues could be resolved to SCB’s satisfaction.” (Footnote: ²⁷⁷) In cross-examination he stated that “It’s the legal teams responsibility to understand the dispute” (Footnote: ²⁷⁸) but claimed he had informed his line manager, Khun Pimolpa (Footnote: ²⁷⁹).

Khun Wallaya, in the section of her Witness Statement which describes the events following the commencement of arbitration proceedings, sets out that “drawdown [on the Watabak facility] was suspended”, but she could not “remember exactly when or how that decision was made or who made it”. Khun Wallaya said, in regard to what she did when she heard that approximately half of the initial US$175m due had not been paid, “I did not take any specific action because there are some other works that other teams are handling” (Footnote: ²⁸⁰).

Khun Arthid’s evidence regarding SCB’s response to the arbitration was: “We know that we have to pause, but we tried to understand what is the reason, what is the issue of the conflict, what ---- why, it cannot be resolved, and we believe that as long as it is in arbitration, we need to wait at least at the beginning when we heard. We don’t know what exactly, and so we decide to pause and try to wait and see and try to understand what is the real consequence before we take any other action” (Footnote: ²⁸¹) and also “I think it is our discretion of how we make decision about how we wait, how we take the decision to wait and see… We always flexible, we always work with clients, with customer, to see how the customer to solve the issue that they have…” (Footnote: ²⁸²) and “…When the customer has a problem, it is a problem, but it doesn’t mean that Khun Nop is doing anything illegal or anything that – he has a problem… We work with the customer, with the awareness that the customer has a problem, and the bank will do our job, or the part we can do to resolve the problem” (Footnote: ²⁸³).

Khun Arthid also explained: “once the issue go to arbitration, nothing can happen” (Footnote: ²⁸⁴) and “…after we know that it went to the arbitration, so I think it’s in good hands that the arbitrator will award whatever to resolve the conflict, so it’s not a bank role to do any action to resolve the conflict for the two parties.” (Footnote: ²⁸⁵) As to the question of who it was within SCB that had directed that nothing should be done until the arbitration had concluded, Khun Arthid admitted that no one had given this specific direction (Footnote: ²⁸⁶) but claimed it was “common sense” from “the business point of view” (Footnote: ²⁸⁷).

Further, Khun Arthid said that he personally was involved in the “close monitoring of the situation caused by the arbitrations between at least the end of January and 25 May 2016” (Footnote: ²⁸⁸) and additionally “legal, risk and business, and mostly risks and business are working closely, but in this case legal also are a major part of the team” (Footnote: ²⁸⁹). He confirmed this was dealt with by the senior members of the teams, who he accepted would be taking a close interest in the case (Footnote: ²⁹⁰).

According to Khun Nop, “What I can recall mostly in terms of funding for WEH, I am speaking to Khun Arthid and the team” and confirmed that he “met him regularly during the entire period from mid to late 2015, onwards to 2018 or 2019”. He also confirmed that “many of” the conversations had to do with WEH and the dispute with Mr Suppipat, as well as “the social function organised by [SCB]” (Footnote: ²⁹¹).

Khun Nop said that his understanding of Khun Parnu’s message was: “that it is a policy of the bank that bank cannot deal with anyone who get lèse-majesté charge…that is bank’s policy and there is nothing we can do. So we have to fix this issue...” (Footnote: ²⁹²). He confirmed that he “went to Mr Weerawong for help in solving the problem” (Footnote: ²⁹³).

Khun Weerawong claimed that in February 2016 Khun Nop and Khun Thun had informed him that the arbitration had caused SCB to raise fresh concerns about Mr Suppipat returning to WEH (Footnote: ²⁹⁴). WCP was then retained to act for WEH, alongside its instruction in respect of the Arbitrations, “in respect to the urgent financing issues that it was facing” (Footnote: ²⁹⁵). Khun Weerawong understood (consistently with Khun Parnu’s evidence) that SCB was effectively refusing to allow drawdown on the Watabak facility, by declining to grant waivers for certain (unrelated) conditions precedent (Footnote: ²⁹⁶).

Khun Weerawong said he spoke to Khun Arthid after he “[l]earned about the SCB did not support the project” on the basis “as the CEO of bank … he should be able to shed some light on this policy”. When Khun Arthid was asked when he “first [had] a discussion with Khun Weerawong about the arbitrations”, Khun Arthid responded, “I never discussed with Khun Weerawong on the arbitration”. However, in his First Witness Statement, Khun Weerawong stated that, “I am unaware how SCB first learned about the arbitrations but by the time I discussed the matter with Khun Arthid he was already aware of at least one of them”. When shown this, Khun Arthid asked to withdraw his comment and said he should have said that he was unable to recall if he had discussed the arbitration with Khun Weerawong.

Khun Weerawong alleged that he informed Khun Arthid “that I was now engaged by WEH to represent WEH to discuss with the bank about whether or not there is possibility to continue with the financing, and I said I was willing to explain in details about the arbitration and my belief that the termination of the agreement should not be awarded by the arbitrators” (Footnote: ²⁹⁷). He alleged that, “Khun Arthid told me that it’s not his decision, I need to talk to the legal team at SCB and come up through the ranking … in accordance with the approval process of the bank” (Footnote: ²⁹⁸). After this, Khun Weerawong said he may have had “updating” conversations with Khun Arthid.

Khun Weerawong’s evidence as to what happened after the initial exchange with Khun Arthid was unclear and confusing. Khun Weerawong claimed he spoke to Khun Parnu afterwards, but Khun Parnu told him to speak to Khun Arthid. After this, Khun Weerawong alleged he spoke to Khun Arthid again and Khun Arthid said he was “not interested” and told him to “talk to the legal team”. Khun Weerawong also alleged that Khun Arthid told him, “Even 1% chance of Khun Nopporn coming back, he think that the bank still have a problem”. Khun Arthid could not recall this statement but confirmed that the bank wanted to ensure it understood the possibility of Mr Suppipat “com[ing] back” but insisted he “never ask[ed]” Khun Weerawong to do the ring-fencing. This is significant: Khun Arthid did not consider it was necessary to “ring-fence” by a further onward sale of the shares.

By contrast, in his First Witness Statement, Khun Weerawong outlined: I believe that I was initially told by Khun Nop and Khun Thun to speak with WEH’s relationship manager at SCB, Khun Parnu. My recollection is that I spoke with Khun Parnu about the arbitrations and told him that they would not affect WEH. Khun Parnu told me that I would have to speak with Khun Arthid as Khun Nopporn was a s.112 person. I believe that I then spoke with Khun Arthid shortly after speaking with Khun Parnu. I asked Khun Arthid what would provide SCB with sufficient comfort that any risk of Khun Nopporn returning had been mitigated. I believe that I offered him a legal opinion on how WCP believed that the arbitrators would not decide in favour of the termination of the SPAs as requested by Khun Nopporn's companies, but was told that this would not be enough. It was then that I realised that we would have to come up with a structure to address SCB’s concerns.” (underlining added)

Overall, on the Defendants’ case, the suspension of financing put Watabak and WEH “in the face of an intense crisis which would have been terminal if the risk of rescission remained” (Footnote: ²⁹⁹). In his Witness Statement, Khun Nop explains that the decision to suspend drawdown on the Watabak Facility came at a point when Watabak had already paid a deposit of around $10m to GE under the TSA and, if financing could not be achieved, GE would demand the balance of the payment and not return the deposit (Footnote: ³⁰⁰). Further, at that point the only funding of Watabak came in the form of equity financing by WEH which would run out “within a few months”, with Khun Thun warning Khun Nop that it would only be possible to pay staff salaries for another two months (Footnote: ³⁰¹).

Khun Arthid admitted that Khun Nop asked him for help to find a buyer or someone who could provide funding: “I should say that he asked me to help or to find the person who has interest to buy the share or to give – provide him the funding, could be lending him the money. Yes, he asked me to do that.” (Footnote: ³⁰²) This is nothing to do with “ring-fencing” the shares; it is all to do with funding Khun Nop such that he could pay Mr Suppipat for the REC shares.

In early 2016, Khun Arthid introduced Khun Nop to Gunkul Engineering PCL (Gunkul) (Footnote: ³⁰³) specifically to “help [NN] obtain the kind of equity financing he required to pay for the REC shares” (Footnote: ³⁰⁴)… “I recall that I introduced him to the owner of Gunkul Engineering, Khun Gunkul Dhumrongpiyawut (“Khun Gunkul”), who was a customer of the bank and a friend of mine. Khun Gunkul had previously expressed an interest in WEH’s wind project companies and Gunkul Engineering was already involved in the energy market in Thailand…” (Footnote: ³⁰⁵).

It appears therefore that Khun Arthid was willing for SCB to finance Watabak if Khun Nop could obtain the funds to pay Mr Suppipat.

However, on 28 January 2016, Symphony wrote to Gunkul to “put [them] on notice that the ownership of the Shares is the subject of an ongoing ICC arbitration between Fullerton … and Symphony … We contend that Symphony is the legal owner of the Shares …”. When Mr Suppipat was asked in cross-examination why he did not want the deal to proceed when it might provide financing to Khun Nop which he could use to pay Mr Suppipat, Mr Suppipat explained that, “I thought that even if Nop sold 10% to Gunkul and kick the can down the road and pay me 85, what about the rest, the rest is potential timebomb. There will be no idea. I will be unlikely to get 525 because the bank is unlikely to sponsor this behaviour”. I accept that evidence.

In the light of all of this evidence about SCB’s involvement, I find that SCB had informally determined after the Symphony arbitration commenced that Watabak could not drawdown on its facility, although no formal decision not to fund had yet taken place. The situation was fluid and remained under consideration, including by the taking of legal advice from Khun Weerawong. I find that Khun Arthid was regularly consulted about the situation and he was seeking to assist Khun Nop to meet his payment obligations under the REC SPAs.

On 17 February 2016, the Emergency Arbitrator granted Symphony’s application for emergency measures (the EA Order), ordering amongst other matters that:

“Fullerton Bay Investment Limited is prohibited from disposing of the shares, representing 49% of the share capital, it holds in Renewable Energy Corporation Co., Ltd. (now known as KPN Energy (Thailand) Co., Ltd.) (including through sale) and/or transferring such shares and/or creating any charge…and any other action having an economic effect similar to the disposal and/or transfer and/or encumbrance of the shares, pending the resolution of the present dispute between the Parties by way of the final award in the arbitration between the Parties” (emphasis added)

On the same day, a meeting took place between members of both SCB (Khun Supalun and Khun Junya Wangdumrongwet) and WCP (two partners, Khun Phisit Dejchaiyasak and Khun Warathorn Wongsawangsiri, and an associate, Khun Natarin Vititviriyakul). It was not attended by Khun Weerawong. A record of the meeting, produced by Khun Supalun, notes:

None of these details were challenged in cross-examination of Khun Supalun (Footnote: ³⁰⁶). Importantly, they demonstrate that the idea of ring-fencing generally did not come from SCB but was something presented to it as the KPN Group’s “solution” (at the behest of its legal adviser, Khun Weerawong – see below). Moreover, if, as WCP suggest, the shares would not need to be returned to Mr Suppipat, this “solution” was not in fact required at all. Rather, it is likely that it was decided upon by KPN/Khun Weerawong as a necessary step to take to ensure that Khun Nop could extract value from the WEH shares before the (legal) net closed in on his dealing with those shares.

In cross-examination, Khun Weerawong confirmed that this is advice that he formulated, being repeated by Khun Phisit (Footnote: ³⁰⁷). The notes do not record how the proposed solution was compatible with the EA Order and its prohibition of steps which had an economic effect “similar to the disposal and/or transfer and/or encumbrance of the shares”. As an experienced lawyer, one would expect Khun Weerawong to have (at least) questioned this, if acting honestly.

Khun Wallaya explains in her Witness Statement that she “recall[ed] being briefed about [this] meeting” and that her “view at that time was that whether or not the terms of the REC SPAs included rights to terminate as a matter of contract, it could still have been possible for Khun Nopporn to rely upon a right to terminate the REC SPAs as a matter of general civil law” (Footnote: ³⁰⁸), and obtain the return of the shares. In cross-examination, she confirmed this was her “personal understanding”. She considered that there was also a risk that any sale of the WEH shares could be challenged if it was not done in good faith. (Footnote: ³⁰⁹) That makes obvious sense and affords another reason why this was not “ring-fencing” the WEH shares at all.

In the lead up to the 17 February 2016 meeting, Khun Nuttawut’s iPhone calendar records:

Between 18-26 February 2016, WCP sent to Khun Supalun of SCB multiple documents relating to the Symphony Arbitration, including:

Khun Sittiporn describes reading the documents provided and being surprised by the suggestion in the arbitration that there was a buy-back arrangement associated with the REC SPAs. He explains that he would have regarded the exercise of any such right by Mr Suppipat as giving rise to a breach of clause 18.3 (Misrepresentation) or clause 18.17 (Material Adverse Effect) under the Common Terms Agreement for the Watabak Facility (WTA) (Footnote: ³¹⁰).

The documents provided did not include Symphony’s Request for Arbitration (dated 26 January 2016); but this was subsequently provided by WCP on 24 March 2016. Nor, surprisingly, did the documents provided include the Application for Emergency Measures (dated 26 January 2016) or the Emergency Arbitrator’s Order (dated 17 February 2016), and these documents have not been found in SCB’s disclosure exercise. Fullerton’s letter of 29 January 2016, which was forwarded by Khun Natarin on 26 February 2016, did, however, refer to the Application for Emergency Measures.

By an email exchange of 25-26 February 2016, Khun Supalun of SCB requested WCP to send “Global transaction agreement which contemplate the buy-back option” to which WCP responded: “as explained over the phone, such agreement is the sole allegation of Khun Nopporn and has never been signed.” No response to this email has been identified or, therefore, disclosed by SCB.

SCB produced a summary chart of the existing arbitration proceedings (with metadata of 29 February 2016). It states that in relation to “Part A – Existing arbitration on ownership of shares in REC”, “The arbitrator issues an injunction prohibiting Fullerton to transfer REC shares but refused to give injunction prohibiting REC to transfer shares in WEH as REC is not party to the SPA”. The Claimants point out that this is a misleading summary because the EA Order did not engage with the possibility of REC transferring shares in WEH. In relation to “Part B – Potential future litigation to unwind the transfer by REC of WEH shares” it states, “KPN is planning to sell all 61% shares in WEH held by REC to a new entity to cut any relation between REC and WEH”. The Claimants allege that this demonstrates that this was KPN’s scheme to protect KPN’s interest alone.

On 17 March 2016, being one month after the EA Order of 17 February 2016, a key meeting took place between Khun Nop, Khun Nuttawut, Khun Weerawong and the WEH Managers. Khun Weerawong’s evidence was that this meeting was convened by Khun Nop to brief the advisors on the ongoing legal dispute and the rationale for and steps taken to ring-fence WEH, as well as to discuss the ASA (Footnote: ³¹¹).

It was at this meeting that the idea of a “ring-fencing strategy” was specifically proposed by Khun Weerawong (Footnote: ³¹²). According to this, there would be a sale of the WEH shares to a connected third party. Ms Collins originally described this as a “related” party in her First Witness Statement (Footnote: ³¹³), but submitted a Third Witness Statement explaining that Mr Weerawong did not use the term “related” during the meeting but that her understanding from the meeting was that “the buyer … would need to be someone with whom the KPN Group had a pre-existing relationship” rather than a familial one (Footnote: ³¹⁴). In cross-examination, Ms Collins said that someone “close” was required since Khun Nop had still not paid Mr Suppipat in full and would need to do so in the future. I consider that Ms Collins’ original description is likely to be the truth of the matter. The plan was to move the shares away from Mr Suppipat but always to keep them under Khun Nop’s control by placing them in the hands of a relative of his. This fact demonstrates that this was not a plan to “ring-fence” the shares at all (as they would still be under Khun Nop’s control), but rather to ensure that any award which Mr Suppipat obtained in the arbitration was rendered nugatory.

It was Khun Weerawong’s evidence that the ring-fencing strategy was a “necessary reaction to the risk that WEH would lose its sole source of financing at the time as a result of NS’s claims in the arbitrations… I therefore developed the strategy in order to save the company and, in doing so, to protect KNG’s only asset. All this was done on the basis that the transaction must be carried out in accordance with Thai law”. (Footnote: ³¹⁵) I consider this to be untruthful evidence for the same reason. It is also inconsistent with his firm advice at the time that Mr Suppipat’s claim for rescission in the arbitration would fail.

In cross-examination, when Khun Weerawong was asked if this strategy was “trying to ensure that even if Khun Nopporn won the arbitration, he would not be able to get back the WEH shares”, he responded that “he would not be able to get the REC shares, but the … WEH shares … will be replaced by money, which is equivalent to value of the WEH shares”. However, Khun Weerawong admitted that he “knew perfectly well the effect of the transfer was likely to be that there was no money within the original structure with which to pay Khun Nopporn”.

Khun Arthid and Khun Weerawong contended that it was a key element of the ring-fencing strategy upon which Khun Weerawong advised that the sale of the WEH shares would be for fair value (Footnote: ³¹⁶). In this regard, Khun Weerawong’s evidence as to his understanding of what Thai law required was: “As a matter of Thai law, such a transaction would need to be made for value (i.e. not for free) and in good faith (which I took to mean fair value in this case)” (Footnote: ³¹⁷). Further, Khun Weerawong alleged that “I suggested [at the 17 March 2016 meeting] that whoever did [viz. bought the shares] should be independent, though that was not in fact a legal requirement for the transaction”. I consider this also to be untruthful evidence; and indeed Dr Kasem was clearly not independent of Khun Nop.

The WEH Managers claim their understanding of the ring-fencing was as follows:

I do not accept this evidence. As will be seen, I find that each of Khun Thun, Mr Lakhaney and Ms Collins knew and intended (like Khun Weerawong) the “ring-fencing solution” to deprive Mr Suppipat of payment under the REC SPAs and any subsequent arbitral awards which enforced it.

During the 17 March meeting, and after Mr Weerawong had left the meeting, it was orally agreed between Khun Nop, Khun Nuttawut and the WEH Managers that the WEH Managers would each receive a 1.25% stake in WEH (Footnote: ³²⁶).

The WEH Managers say that this deal was but the fourth iteration of what they called “WEH Managers’ Incentive Schemes”. The First was the pre-2015 original employment agreement between WEH (with Mr Suppipat in charge) and themselves. The Second culminated in the ASA. The Third stemmed from the MoU dated 24 August 2015 and would have awarded them a stake of any call option consideration payments.

Given the fate of the previous incentive schemes and (by then) the difficult relationship between Mr Suppipat and Khun Nop, the WEH Managers maintain that they were keen to ensure that the incentive scheme took the form of shares directly held in WEH (without conditions) rather than shares in a holding company, or a monetary payment or bonus based on an agreement or an assurance (Footnote: ³²⁷). Further, they submit that the purpose of the shareholding was a legitimate employment incentive for the WEH Managers to continue working for WEH in order to help build its projects and raise money, despite the uncertainty surrounding WEH, given the Symphony Arbitrations. (Footnote: ³²⁸) They say that the Fourth Incentive Scheme was a natural evolution from the Third, given that the COA fell through.

The Claimants, on the other hand, submit that the 1.25% stake in WEH was a bribe from Khun Nop personally to the WEH Managers for their assistance in the dishonest ring-fencing scheme. That involved by necessity, amongst other things, Ms Collins and Khun Thun abdicating their responsibilities under the KPN EH SHA, in particular protecting Mr Suppipat from the wrongful sale of WEH shares (which was exactly what was planned). Accordingly, at this meeting, plans were hatched to terminate the KPN EH SHA.

Furthermore, on 18 March, Mr Lakhaney emailed Khun Thun, notably using their personal gmail addresses, rather than their professional email addresses. Mr Lakhaney asked Khun Thun to show Khun Nop and Khun Nuttawut “a presentation on the key points from yesterday”, which he “believe[d] captures everything including the basic points of a potential SHA”. Ms Collins gave evidence that: “I do recall the Project Houdini document circulated by Mr Lakhaney on 18 March 2016 which set out the steps…”

In this 18 March email, Mr Lakhaney states that, because Khun Thun is “there”, he does not want to send the presentation on “by email”. It is inferred by the Claimants (and I accept) that the reference to “there” is a reference to a dinner and party at the Narongdej family residence. The dinner is evidenced by various calendar entries: Nuttawut’s iPhone calendar recorded a “Dinner (Sir Anan Payarachun, Mr Anutin, Dr Wichit)” and Khun Arthid’s MS Outlook Calendar recorded “Dinner with K. Nop Narngdej, Than Anand.” As such it appears the dinner involved Khun Nop, Khun Nuttawut, Khun Arthid, Khun Anand and Dr Vichit, joined by Khun Anutin Charnvirakul (at this date, of course, Khun Anand was the Chairman of the SCB Board of Directors; Khun Arthid was the CEO and Vice Chairman of ExCom; and Khun Vichit was the Chairman of ExCom).

This dinner event appears distinct from a far larger party that also took place that day. When asked about the “dinner” Khun Arthid said that: “If that is between Khun Nop and Khun Anutin, I couldn’t recall, because I only recall when there was a big party when Khun Anutin joined, the big party. I think that’s the only dinner I recall. And I couldn’t recall that on the night of March 18 we had dinner, and I didn’t, I couldn’t – I could not recall that I was told about this ring-fencing on March 18. The only date that I recall is when there was a team report this issue at the ExCom.” (Footnote: ³²⁹) A photo on the Instagram of Khun Nuttawut, which was posted on 18 March 2016, also shows Khun Nop, Khun Anutin and Khun Arthid together.

According to Khun Arthid’s calendar, the dinner did not start until 19:00 hrs; whereas we know from the “Date” line of the email to Khun Thun that it was sent to him at 15:47 hrs (i.e. in the middle of the afternoon). In cross-examination Mr Lakhaney unconvincingly suggested that he did not want to send the document by email to Khun Nop or Khun Nuttawut because WEH had had “a series of leaks of information” (Footnote: ³³⁰).

The “Project Houdini” presentation is a very important contemporaneous document. It referred to the following in particular:

I find that each of the WEH Managers must have been aware at the time of the substantive terms of this presentation (as mentioned, Ms Collins gave evidence that she was aware of it on 18 March 2016 (Footnote: ³³¹)). The WEH Managers say that nothing was said to them about the proposed price for the shares (Footnote: ³³²). They also say that there was no discussion about the means by which Mr Suppipat would be paid following the ring-fencing (Footnote: ³³³): according to Ms Collins and Mr Lakhaney, it was simply understood and assumed that Mr Suppipat would then be paid (Footnote: ³³⁴). I do not accept this. It is clear from the Project Houdini Presentation that the shares were to be transferred to a KPN-controlled SPV, out of Mr Suppipat’s reach (avoiding the impact of the BVI Injunction), and that this was never intended to be a bona fide transaction; rather it was intended to benefit Khun Nop and disadvantage Mr Suppipat.

Regarding the dinner, the Claimants suggest that the purpose of this was to discuss Project Houdini and Khun Anutin’s role in it as a potential nominee investor in WEH and that given the timing of the dinner, he was likely asked whether he was prepared to be Khun Nop’s nominee in the same way that Khun Tassapon was subsequently approached and asked to sign back to back stock transfer instruments (Footnote: ³³⁵). Whether that be true or not (and I make no finding in that respect), no arrangements in this regard ultimately appear to have crystallized.

Khun Nop unpersuasively claimed that the Project Houdini document was not familiar to him (Footnote: ³³⁶) and he could not recall whether it was given to him on 18 March 2016 (Footnote: ³³⁷). Khun Nuttawut said that he could not recall anything being handed to him on this day (Footnote: ³³⁸) and claimed “We have several discussion. There is something along this line, but I do not remember exactly on this one.” (Footnote: ³³⁹) I reject their evidence.

Khun Nuttawut’s evidence about the dinner was as follows:

“Q. And you discussed the proposal at that dinner?

A. No, I don't think we have any discussion about anything about the case at all.

Q. So what did you discuss?

A. We did not, my Lord.

Q. How do you remember that?

A. It is the party with the long table, and there was more on the casual talk about everything about -- I mean, it is a casual talk and I am a junior in that table. So I sit in the corner of the table. If I am not wrong, it is 24 seats or 28 seats of table, and I was very junior and I sit very far away.” (Footnote: ³⁴⁰)

It was Khun Arthid’s evidence that he had “[n]ever heard” of Project Houdini and the ring-fencing was not discussed with him at this event which was “purely about the socializing, it’s not – it’s nothing to do with the business at all.” (Footnote: ³⁴¹) I accept his evidence.

I find that the Project Houdini Presentation records what was agreed in the meeting on 17 March 2016 between the WEH Managers, Khun Nop and Khun Nuttawut. Mr Lakhaney and Khun Thun used their gmail addresses and wished to hand the document to Khun Nop and Nuttawut at Khun Nop’s residence because they knew that this was not a good faith proposal (hence the suggestion to avoid incorporating a SPV-transferee in Hong Kong or the BVI, and for Khun Nop to remain in control of the WEH shares after the sale) and was designed to be kept secret from Mr Suppipat, because (i) the WEH shares were to be transferred to a third party in order to defeat Mr Suppipat’s arbitration claim and (ii) the WEH Managers would no longer be protecting his interests but instead would be receiving valuable benefits (the 1.25% stake in WEH) from Khun Nop. It is no coincidence that shortly after this meeting the KPN EH SHA and the ASA were terminated to relieve the WEH Managers of the obligations which they owed to Mr Suppipat’s Companies. There is no evidence, however, that SCB and/or Khun Arthid was made aware of Project Houdini at this dinner.

On 22 March 2016 SCB submitted its finalized engagement letter for it to act as the sole financial advisor, sole book runner and sole lead underwriter of WEH and its subsidiaries in relation to the contemplated IPO in return for, inter alia, a non-refundable financial advisory fee of 0.75% of the IPO proceeds. This followed from SCB’s Credit Committee meeting, on 10 March 2016, which considered the proposed IPO of WEH and how they had been informed that the market price of WEH should be approximately $1.3 billion. The letter was signed by Arthapong Porndhiti of the Investment Banking Division (IBD) along with the Chairman and Chief Executive Officer of SCB Securities Company Limited. SCB submits, and I accept, that none of the individuals who signed this letter were involved in the processes relating to drawdown on the Watabak Facility because that was (a) a matter of project finance dealt with by the CMD, and (b) involved legal issues dealt with – confidentially – by SCB Legal. The IBD was a separate part of the bank (as investment banking divisions of banks always are) because of the market sensitive nature of their work (Footnote: ³⁴²). Khun Wallaya and Khun Anucha gave evidence to this effect. (Footnote: ³⁴³)

The Claimants put to Khun Arthid the inconsistency between SCB seeking the WEH IPO mandate at the same time as recognising the risks which the Arbitrations posed:

“Q. Why were you signing up an engagement letter for an IPO if you were seriously concerned that you might not be able to continue to lend to WEH because of the arbitration?

A. My Lord, this is the normal practice that when you sign the FA or IPO, that the process for IPO will not take place right away. It will be a project that need to be prepared for a long time. It could be years, it could be two years. So for the bank to do our business, for the bank to prepare long−term work in order to do a fundraising, if it can happen, then we can −− we need to prepare prior to −− a long time prior to the process. So we know that the problem happened at arbitration. What −− we still believe that once the arbitration award, we should see the clear result of what is going to happen. If the arbitration award, the project can no longer go on, the commitment to be the FA or doing the IPO will just cannot go further. I think that’s the normal way of doing business.

Q. You see, I suggest to you that you wanted −− the bank wanted the business with WEH and the very profitable lending and IPO to proceed, and you were trying to find a way of reducing your risk of Khun Nopporn coming back?

A. You use “and”, right; can you read again?

Q. Yes.

A. Yes, we treat this transaction that it will be a good business for project finance for us, and if the deal can go on and because the project will be up and running, the company, WEH, should be in a position to be able to do IPO. So that is the normal business of the bank. And on the other hand, if Khun Nop can do fundraising to IPO, it will reduce the risks of Khun Nopporn. And I think that’s how to settle the dispute, and there should be no further issue between the buyer and seller.” (Footnote: ³⁴⁴)

It was clearly the case that SCB was committed to the IPO of WEH and would do all that it could to ensure that the IPO would go ahead.

On 25 March 2016, NGI/DLV issued a Request for Arbitration against KPN EH/Fullerton under the KPN EH SPA (the NGI/DLV Arbitration). From the calendars, it appears that Khun Weerawong met with Dr Vichit on this day; and Khun Nop and Khun Nuttawut had a meeting at WCP.

By this stage, SCB’s legal department (at least) became aware of the dangers of the ring-fencing solution. In particular, on 25 March 2016, Khun Sittiporn of SCB emailed Khun Weerawong (copying in Khun Wallaya) “a summary chart of [the] KPN dispute” which had been “prepared internally for SCB management” and “will form the basis for our meeting to be held next Tuesday (29 March)”. The chart is entitled “Summary of KPN EH Dispute As of 2 March 2016” and certain parts of that chart are legally privileged. However, in regard to the non-redacted parts, the chart highlights “DISPUTE A: EXISTING ICC ARBITRATION DISPUTE BY SELLER AGAINST FULLERTON” and “DISPUTE B: WEH SHARE TRANSFER TO NEW INVESTOR =>, POTENTIAL THAI COURT CASE”. The latter is explained on the basis that “REC plans to sell 61% shares in WEH to New Investor to segregate shareholding in wind farms assets from REC”. (underlining added)

It follows that SCB’s legal department considered that there was the potential for a Thai Court Case if the WEH shares were transferred to a new investor, presumably if that transfer were not a good faith transfer. This is reinforced by Khun Wallaya’s evidence regarding Dispute B as follows:

“Q. It is right, isn't it, that this time you personally and your legal department contemplated a possible Thai court case in relation to the sale of these shares not being in good faith?

A. I cannot answer this; it depends on the fact. That is why we asked Khun Weerawong to come and explain whether it is in good faith.

Q. Why did you write the words "potential Thai court case" if you did not have it in your contemplation?

A. Because there's a Supreme Court ruling that if a transaction is found in ungood, unfair price or not in good faith, the transaction can be revoked.

Q. Yes, and you were concerned about it?

A. That is why I asked Khun Weerawong to come and explain.

Q. What did you ask Khun Weerawong about at this meeting? I can't tell from here because someone has blanked it out, so ...

A. I asked Khun Weerawong to explain the purchase price, and Khun Weerawong explained that the third party, an independent assessor, has assessed the share value.

(Uninterpreted) And said this is fair price.

(Interpreted) And said this is fair price.” (Footnote: ³⁴⁵)

In cross examination the following exchange with Khun Arthid took place in respect of “DISPUTE B”:

There is no clear evidence that Khun Arthid was told at this time.

A meeting was convened by SCB at its offices on 29 March 2016 involving representatives of both SCB Legal (Khun Wallaya, Khun Chanmanu, Khun Sittiporn and Khun Supalun (Footnote: ³⁴⁶)) and WCP (Khun Weerawong and Khun Phisit).

In cross-examination, Khun Wallaya said that her concern of 17 February 2016 about the risk of the WEH share sale being challenged “led to the meeting of 29 March where Khun Weerawong came in to clarify that the share transfer had been done in good faith”. However, it was also Khun Wallaya’s evidence that it was Khun Weerawong who asked for this meeting, rather than herself, and it was her understanding that he wanted it for the purposes of “[e]xplanation of the sale transaction, whether it is in good faith or not good faith”.

Khun Wallaya admitted to having a different legal opinion to that of Mr Weerawong - whilst “Mr Weerawong [had already] confirmed that … Mr Nopporn cannot return as a shareholder”, Khun Wallaya was “doubtful of his view”. Similarly, it was Khun Sittiporn’s evidence that, “At first we think that there might be a chance or a legal theory that the transfer might … be questionable … When Khun Wallaya and SCB legal team had a meeting with Khun Weerawong we challenge him about the good faith of the transaction”. When Khun Wallaya was asked in cross-examination why she “did not alert Khun Arthid or the executive committee” of her concern about the WEH share sale being challenged before March, she said “[t]hat is my personal legal opinion, and there could have been facts that I was not aware of, so it’s not my position to go and talk to Khun Arthid about it”.

In her Second Witness Statement, Khun Wallaya’s evidence is that at the 29 March 2016 meeting, Khun Weerawong advised that:

However, Khun Wallaya confirmed in cross-examination that she understood that an attempt to transfer the shares and to leave REC without shares and without money, gave rise to a risk of action in the Thai civil courts, including under section 237 TCCC (cancellation of a fraudulent act) (Footnote: ³⁵¹).

It was Khun Weerawong’s evidence that SCB’s legal team “need[ed] to be conservative, because they’re bank’s lawyers, so they ask several questions about, you know, how this thing will work and whether or not there is, legally, a possible way for Khun Nopporn to come back as shareholder of WEH. But I based my explanation on several Supreme Court decisions…” (Footnote: ³⁵²) and “They – they expressed concern and argue for the sake of clarification for me, and at the end of the meeting, when I fully explained the legal concept, especially no intention for asset stripping, because it would be a share transaction in good faith, you know, based on the fair value, then they said WCP come up with what we call “clean legal opinion” (Footnote: ³⁵³). He explained that ““clean” means you don’t put any exception, caveats, whatsoever, and I said yes, because these legal concepts are very clear in the Thai ..”. He also clarified that “good faith”, in his view, meant “fair value at the time of the sale”, which is normally assessed by “retain[ing] a financial adviser … recognised …. [on the] security exchange commission of Thailand” and “not intention to harm the creditors of the company”. He agreed that “if the intention was to harm Khun Nopporn, it would not be in good faith whether or not Khun Nopporn was a direct creditor of REC”.

On SCB’s case (Footnote: ³⁵⁴), the outcome of the meeting on 29 March was that WCP was required, as lawyers for WEH and Watabak, to produce an opinion as to the impact of the arbitration on SCB’s lending and whether a transfer of the WEH shares to a new investor could be legal, legitimate and irreversible (Footnote: ³⁵⁵). Numerous drafts of this opinion were produced by WCP from April 2016 onwards (the First WCP Opinion).

Khun Wallaya agreed that it “would have been outside [her] authority to decide that [she] would get an opinion from WCP rather than relying on the bank’s own internal opinion” (Footnote: ³⁵⁶). She asserted it was “for the ExCom’s resolution” and she “Think[s] that it was ExCom” who decided to get an opinion from WCP (Footnote: ³⁵⁷). However, no relevant ExCom meetings were disclosed in this period. Later in her cross-examination, Khun Wallaya inconsistently asserted, “I asked Khun Weerawong to provide a written legal opinion. It was in my authority and my responsibility. I didn’t have to notify Khun Arthid or ExCom.” (Footnote: ³⁵⁸) When questioned about her apparent change in stance regarding the authority required to request the provision of a legal opinion, Khun Wallaya attempted to make an unconvincing distinction between the instruction of WCP and the instruction of a third party, suggesting she had the authority to do the former but not the latter: “if it is external legal opinion, it’s the ExCom to make the decision whether we needed it or not, but for WCP it was under my responsibility” (Footnote: ³⁵⁹).

Originally Khun Wallaya said, “we also had Baker & McKenzie providing the legal opinion as well”. Whilst this opinion was withheld on the basis of privilege, Mr Davies-Jones KC informed the Court that, contrary to Khun Wallaya’s evidence, in fact it “was not obtained at this time in 2016”.

Khun Wallaya then explained, “we use WCP because they have good understanding of the arbitration in Singapore”, even though they were “Khun Nop Narongdej’s and KPN Energy’s lawyers”, on the basis that “[i]f we obtain the third party legal opinions what we would get would be only a general opinion, not as specific as what we could obtain from WCP”. She was unable to satisfactorily explain why an independent lawyer could not be instructed and provided with the relevant documents in order to give his or her opinion, bizarrely suggesting that the reason against doing so was that an independent lawyer would give the same opinion as her (Footnote: ³⁶⁰).

This evidence of Khun Wallaya was unimpressive, unpersuasive, and she was an unsatisfactory witness. However, I find that there is insufficient evidence for the court to make a finding that the reason for her unpersuasive evidence was that she was in cahoots with Khun Weerawong in relation to the dishonest asset-stripping scheme; I find that it is more likely to have been that she was embarrassed by her woeful failure to take steps to protect SCB’s position.

Khun Sittiporn gave evidence that “in Thailand it is … very common practice for the bank to rely on lawyer of the borrowers”. When further questioned he said, “I think another reason we have to rely on WCP opinion … because this case is involving reputational risk to the company and it is very sensitive issue … and at that time, I don’t think there is any other law firm that can provide opinion about the pending arbitration, because WCP … are handling the arbitration proceedings” (Footnote: ³⁶¹). Khun Supalun said, “My understanding is that it is not unusual for the borrower's counsel to keep advice that the lenders rely upon, … where the borrower's counsel which is the one closer to the transactions, … and in this case WCP is quite a reputable firm”.

Khun Weerawong similarly gave evidence that it was not unusual that WCP had been instructed:

“Q. You understood, did you not, from that that the bank were relying on your firm to produce an independent opinion?

A. Correct.

Q. Right.

A. In my role as the borrower's counsel.

Q. Well, what do you mean by that? Is it meant to be objective and independent or not?

A. When -- when -- when you issue legal opinion, then it's normal practice that you issue to your client. But when the transaction require you to say that the bank can rely on your legal opinion too, that's what I mean.

Q. Then it has to be made objectively and in good faith?

A. Everything, whether or not we issue legal opinion to anyone, it has to be made in good faith.” (Footnote: ³⁶²)

Notably, at this point in time SCB had instructed two (properly) independent law firms in Thailand – Chandler & Thong-EK and Norton Rose. This was confirmed by Khun Parnu in cross-examination. Khun Parnu said he did not know why these firms were not asked to provide an opinion in relation to the Kasem transfer. (Footnote: ³⁶³)

This evidence of these other SCB witnesses was likewise unconvincing. However, I am prepared to accept that it is more likely to have been borne out of embarrassment at SCB’s lack of scrutiny concerning Khun Weerawong’s inappropriate role as adviser in the transaction rather than for more sinister reasons.

So far as Khun Arthid is concerned, he alleged in cross-examination that he was “never aware” of “a proposal that Mr Weerawong’s company WCP should be asked to provide an opinion” and that he was “not aware that [Khun Wallaya] asked for [an] opinion”.

Khun Arthid also alleged that he “did not know” that the “ring-fencing was proposed by Khun Weerwong on 17 March and then discussed on 29 March with Khun Wallaya”. He denied that he was ever aware of the proposal and asserted that he only “became aware of the shares being transferred to Khun Kasem after it happened”. By contrast, Khun Nop, despite originally denying that the ring-fencing was ever discussed with Khun Arthid, later admitted in cross-examination that it was. However, I am unable to rely upon anything said by Khun Nop in evidence unless supported by a genuine contemporaneous document. I am accordingly willing to accept Khun Arthid’s evidence in this respect.

I turn next to two other highly significant documents, namely the photographs of the contemporaneous white boards.

A photograph of a white board with “Last Modified Datetime” metadata of 1 April 2016 (the 1 April 2016 White Board) shows that, as of this date, the plan was for “NEW Co” to acquire REC’s WEH shares for the price of only THB 2,400m i.e. US$68m.

In cross examination, Mr Lakhaney sought to distance himself from this image, claiming: “I have never seen this before. It’s not my handwriting…” (Footnote: ³⁶⁴). However he thought it was “possible” that the writing belonged to Khun Thun (Footnote: ³⁶⁵). Ms Collins, too, said “I have not seen that so I don’t know what that is.” (Footnote: ³⁶⁶) Khun Weerawong similarly said “That is not my writing.” (Footnote: ³⁶⁷)

Mr Lakhaney accepted that the structure shown on the 1 April 2016 White Board was not an arm’s length sale to a third party, rather “it shows that there needs to be a relationship with any transactor” (Footnote: ³⁶⁸).

A second photograph of a white board with “Last Modified Datetime” metadata of 7 April 2016 (“the 7 April 2016 White Board”) provides very important detail of the implementation of the share-stripping scheme and the Defendants’ respective involvement, including:

Mr Lakhaney admitted that the handwriting on the 7 April 2016 White Board was his (Footnote: ³⁶⁹) and that he wrote this at some point after the 17 March 2016 meeting with Khun Weerawong (Footnote: ³⁷⁰). As to the content of the 7 April 2016 White Board, he explained that “I think what’s in the Houdini presentation is largely from Mr Weerawong. I think I’m just plugging in bits and pieces to complete some of this, just in terms of steps.” (Footnote: ³⁷¹) In relation to the references to SCB, Mr Lakhaney confirmed that he was getting this information “probably from Khun Thun or maybe Weerawong. I don’t remember.” (Footnote: ³⁷²) He confirmed that the reference to “BVI lawsuit” was to injunction proceedings in the BVI (Footnote: ³⁷³) (which had been brought by Mr Suppipat’s Companies).

By this stage, Khun Nop, Khun Nuttawut, Khun Weerawong, Khun Thun, Mr Lakhaney and Ms Collins were all aware of the Project Houdini plan. Consistently with the reference on the 7 April 2016 White Board, and its reference to the need for “historic documents” to be terminated, an agreement terminating the KPN EH SHA was entered into dated 1 April 2016 (SHA Termination Agreement). However, on the Claimants’ case this was actually created on 4 May 2016. They highlight that, according to Khun Weerawong’s privilege log, a draft of the SHA Termination Agreement was circulated on 4 May 2016. Further, they refer to an email from Mr Lakhaney to Khun Thun on 26 April 2016 (Mr Lakhaney’s 26 April 2016 email) which sets out that a step still to be carried out is “SHA gets terminated”.

This strongly suggested that the SHA Termination Agreement was not executed on the date which it bears. As such, the WEH Managers accepted that the SHA Termination Agreement was signed after 26 April 2016 and Khun Nop and Nuttawut submit it was created in or around April or May 2016. I find that, as the Claimants maintain, it is likely that it was created on 4 May 2016, as the 7 April 2016 White Board anticipated.

When asked about the decision to terminate the KPN EH SHA, Khun Nop said that he was following legal advice and was not aware of the specific reason why this was necessary.

Khun Weerawong said that he thought he had “advised in general” that the KPN EH SHA should be terminated. When asked what this meant he said, “[m]eaning that if they don’t want to be bound with any agreements with Khun Nopporn, because at that point in time they seemed to be on different camps, then terminate them.” (Footnote: ³⁷⁴)

Khun Thun, when asked why it was necessary to terminate the KPN EH SHA at this point, said: “I think first of all, first of all, I reiterate this, KPN EH is not my share. So I return the share – I will resign, I returned. Then I thought that should be enough. But then I think Aman or Mr Lakhaney suggested I need also to terminate it, because I signed it, or something like that”. Khun Thun accepted that he and Ms Collins, as at March 2016, were still able to prevent the sale of the WEH shares under their blocking powers under the SHA, (Footnote: ³⁷⁵) but he denied that, at this stage, he had decided to abandon his support for Mr Suppipat and instead to support Khun Nop. (Footnote: ³⁷⁶) I do not accept this denial.

According to Ms Collins, Mr Lakhaney “just raised the fact that we would need to terminate the SHA”. She said she did not specifically ask him why this was necessary and they did not have a discussion about the blocking mechanism in the SHA which could prevent the sale of the WEH shares. (Footnote: ³⁷⁷) Moreover, Ms Collins claimed never to have read the KPN EH SHA (Footnote: ³⁷⁸). I consider her evidence on this topic to be implausible and false.

In short, each of the WEH Managers’ evidence was unconvincing on this crucial topic. None of them could convincingly explain why it was necessary to terminate the KPN EH SHA at this time. The real reason it was terminated by them is, I find, as follows. The WEH Managers had defected to Khun Nop’s camp and were actively assisting in the asset stripping sequence as envisaged by the Project Houdini presentation and White Boards. In return, they were allotted shares in KPN EH by Khun Nop. Under the KPN EH SHA (which was signed on the day the REC SPAs were executed), Mr Suppipat had entrusted Ms Collins and Khun Thun to use their powers under the KPN EH SHA (clause 7 and §2.3 of Schedule 2) to block any proposed decision by REC to sell its WEH shares (and the ASA obliged them to do so). It was accordingly necessary to terminate the KPN EH SHA (and the ASA) to free Ms Collins and Khun Thun of their obligations thereunder so as to enable them to facilitate the transfer of the WEH shares from REC to one of Khun Nop’s nominees.

Mr Lakhaney’s 26 April 2016 email also refers to Khun Thun and Ms Collins’ exit from KPN EH which had not yet occurred. This indicates, as the WEH Managers admit (Footnote: ³⁷⁹), that the following documents were backdated:

It is notable that the following text messages in particular were exchanged between Ms Collins and Mr Lakhaney on 7 April 2016, being the date of the Lakhaney white board which records the need for “historic documents” to be terminated:

Further, a meeting minute produced by Mr Lakhaney apparently records a meeting which took place on 7 April 2016 at the WCP offices and was attended by Khun Nop, Khun Nuttawut, the WEH Managers, Khun Weerawong and Khun Phisit. The content of the minute includes:

However, Mr Lakhaney admitted in his Witness Statement that this minute was in fact prepared in January 2018, he said in connection with a proposed IPO of WEH (Footnote: ³⁸³). It is common ground it was created after the fact (without any involvement of Khun Nop or Khun Nuttawut). (Footnote: ³⁸⁴)Mr Lakhaney explained that he chose falsely to date it as 7 April 2016 on the basis:

“I think … there was another meeting at WCP scheduled for that day, I think around arbitration. … The rest of it is embellished where we needed it to be embellished to try and find alternative explanations for the expense points. …. I think some of it was what actually happened at the meeting. Some of it is going to be things that happened subsequently that I just put in, and the rest of it will be things that we needed to put in for the expense points”.

Mr Lakhaney gave evidence that the date the minutes bear (7 April 2016) is incorrect. Instead, he says that on 17 March “there was a meeting called -- I don't remember if it was Mr Narongdej or Weerawong, but there was a meeting called at the WCP offices to discuss the ring-fencing by Mr Weerawong.”

In his Witness Statement, Khun Weerawong had suggested that this meeting did take place on 7 April 2016 as follows:

“43.

Shortly after meeting with SCB, I met with Khun Nop and Khun Thun to propose the ring-fencing plan (which might or might not work since there was no funding commitment from SCB despite the plan). I then had a discussion with Khun Nop as to who would buy the shares. I suggested that whoever did should be independent, although that was not in fact a legal requirement for the transaction ….

44.

Following my discussions with Khun Nop and Khun Thun, Khun Phisit and I attended a meeting with KNG and the WEH management team at WCP’s offices in Bangkok. On the basis of the minutes shown to me this took place on 7 April 2016. The purpose of this meeting was to open the floor to SCB’s concerns over lending to WEH and to outline my strategy of ring-fencing the WEH shares from the legal dispute between KNG and Khun Nopporn.

45.

My recollection of this meeting has been aided by reviewing a minute of the meeting disclosed in these proceedings. I did not personally take a note of the meeting (and neither to my knowledge did Khun Phisit) and I was not provided with a copy of the minutes immediately after the meeting. As such, although I cannot be sure I expect the minutes were prepared by a member of the WEH management team.

However, Khun Weerawong accepted in his Second Witness Statement (at [5]) that he could have been wrong about the date of the meeting; and that he had only ever taken the date of the meeting from the meeting minute.

I reject this evidence in so far as it is suggested that there was a legitimate meeting on 7 April 2016 at which a bona fide ring-fencing scheme was discussed, in the light of Mr Lakhaney’s admission that he created this false document in January 2018. Instead, I find that these minutes were created after the event by Mr Lakhaney in order to give the false impression that the ring-fencing scheme was a bona fide scheme rather than the dishonest asset-stripping scheme that it was.

On 3 May 2016, Ms Collins, Khun Thun and Ms Siddique (no doubt on Mr Lakhaney’s instructions) wrote to NGI terminating the ASA in accordance with clause 5.1, noting that the ASA would be terminated after the lapse of 60 days from the date of receipt of the letter.

On the Defendants’ case, neither Khun Nop nor Khun Nuttawut was party to or concerned with the termination of the ASA, (Footnote: ³⁸⁵) which the WEH Managers alleged was a separate decision made by the WEH Managers with the benefit of legal advice from experienced London and Singapore solicitors. (Footnote: ³⁸⁶)

In cross-examination, Ms Collins insisted that this was done “because [they] kept getting threatening letters from Next Global” and the decision to terminate “was a separate discussion between the managers, and we were taking separate legal advice on that” (Footnote: ³⁸⁷). Khun Thun also alleged that the letters were the cause “[t]o quite a large extent”. It was Mr Lakhaney’s evidence that the WEH Managers “got legal advice around our options and decided to terminate eventually because the situation was just untenable”, specifically he alleged “we were working with Norton Rose, we knew the lawyers there. They recommended a firm in Singapore called Peter Low LLC and we got legal advice from them” (Footnote: ³⁸⁸) and also “it was a completely untenable position to – getting these letters, being asked to take action against the current shareholders and trying to manage the business at the same time”.

I do not accept this evidence. I consider that the termination of the ASA was part of the scheme set out on 7 April 2016 White Board. It had to be terminated for similar reasons to the KPN EH SHA, which was to effect the asset-stripping sequence. This is because the parties knew that, following the transfer of the WEH shares away from REC, Khun Nop’s Companies’ REC shares would become worthless and therefore they would become unable to pay under the REC SPAs.

It appears that Khun Thun and Mr Lakhaney were by this stage contemptuous of Mr Suppipat. An illustration of this is afforded by an email dated 20 May 2016 from Khun Thun to Mr Lakhaney, in which he referred to Mr Suppipat as follows: “MNS (M for mother fucker?)”.

The termination of the ASA, as well as the termination of the KPN EH SHA (under the SHA Termination Agreement), freeing the WEH Managers from having to act in Mr Suppipat’s interests, both occurred in early May 2016. This was shortly before Ms Collins and Mr Lakhaney received their promised 1.25% stakes in WEH from Khun Nop on 23 May 2016, when two share transfer instruments were executed recording that Dr Kasem had transferred 1,360,467 WEH shares to each of them. Khun Thun received his stake on 29 August 2016.

In light of the WEH Managers’ claim that this was a bona fide incentive scheme (which I reject), it is notable that false documents were produced in connection with WEH’s proposed IPO to disguise the receipt of these management incentive shares (see below).

It was around this time, April 2016 and moving into May 2016, that WCP and Khun Weerawong in particular, started to liaise with SCB regarding the production of a legal opinion supporting the transfer of the WEH shares to a third party (ultimately Dr Kasem). This was the next element in the creation of the dishonest ring-fencing strategy, as anticipated on the 7 April 2016 White Board (above): the provision of a legal opinion from WCP pretending that the share transfer was a bona fide transaction.

According to the Defendants (Footnote: ³⁸⁹), the First WCP Opinion was drafted under the supervision of Khun Phisit and it was not the unilateral work product of Khun Weerawong, although he accepted that the advice that it recorded was also his (Footnote: ³⁹⁰), and that he reviewed the draft opinion and provided comments before it was finalised.

An initial draft of the opinion was produced on 11 April 2016 and records the opinion as purportedly sought by SCB to “provide an opinion to the Bank with respect to the dispute between the original shareholder and the current shareholder of Renewable Energy Co., Ltd. (“REC”), a major shareholder of Wind Energy Holding Co., Ltd. (“WEH”), which may affect the Bank’s plan in providing financial support to investors in purchasing REC’s assets and/or accepting transfer of liabilities of REC, including WEH shares of which REC is a major shareholder” . The draft also shows that SCB wanted to know (i) “the legal implications for the Bank in the event that REC transfers all of its assets and liabilities, including all WEH shares held by REC, to new investors”, (ii) whether Symphony could exercise its rights by requesting the cancellation of transactions and the disposal of shares if successful in the Arbitration, and (iii) whether the Arbitration might disrupt WEH’s IPO plans.

The first draft of the First WCP Opinion was emailed from Khun Phisit of WCP to Khun Supalun of SCB on 18 April 2016. Notably, the Opinion sets out that “REC wishes to dispose of, transfer or sell all its assets and debts, including the WEH shares … to new investors as this is considered necessary for business …. The disposition, transfer or sale of these assets would not affect the issue of the payment of shares under the share purchase agreement between Fullerton and Symphony, whereby Fullerton would still be able to pay the share price to Symphony under the agreement.” (underlining added)

This was plainly a lie and was, I find, part of the dishonest strategy to ensure that Khun Suppipat’s companies could not recover the purchase price under the REC SPAs from Khun Nop’s companies. In cross-examination, Khun Weerawong said that the statement that the share transfer would not affect the issue of payment was “a mistake” (albeit one for which Khun Weerawong blamed Khun Phisit and the WCP team) (Footnote: ³⁹¹). I find that it was not a mistake – it was a deliberate falsehood.

Khun Weerawong also admitted “it’s not right, because we shouldn’t say that. We as lawyer, how could we talk about ability to pay because we have no clue about that. We can only talk about legal issues, and that’s why I said it’s a mistake. And the legal team and other team of SCB have not picked this up, as the point where we mislead them or anything. Not at all. Whenever I confirm to people I confirm about legal, legality, you know.” (Footnote: ³⁹²) Additionally, he said: “The legal opinion is Fullerton is still obliged to pay” (Footnote: ³⁹³). Khun Weerawong was compelled to admit that he “knew perfectly well the effect of the transfer was likely to be that there was no money within the original structure to pay M Suppipat” (Footnote: ³⁹⁴) and that after the transfer “there is no legal basis on which Khun Nopporn could have obtained the money … from the future development of the WEH business” (Footnote: ³⁹⁵).

Khun Sittiporn said that he didn’t know how he was “going to ensure that KPN paid Khun Nopporn if they had already sold the shares to Khun Kasem” (Footnote: ³⁹⁶). Khun Nop suggested only “At that time I am still hope and live up to my commitment with Mr Suppipat. I’m thinking at that time try to find my best to pay him – the obligation.” (Footnote: ³⁹⁷) He claimed he had hoped that his speculative inheritance and “another source” would cover it (Footnote: ³⁹⁸). I do not consider this to have been truthful evidence.

In the First WCP Opinion the view was also expressed that Symphony’s rescission claim was likely to fail. As noted above, Khun Weerawong had earlier expressed to both SCB Legal and (separately) Khun Arthid his view that the rescission claim was bound to fail as a matter of substance (as, in due course, it duly did, but only for procedural reasons). However, the Opinion also acknowledged the possibility that it might succeed. In this regard, WCP advised that the dispute between Fullerton and Symphony would not have any legal impact on the transfer of REC’s assets to new investors or on WEH’s IPO, even if Symphony subsequently won the case and was able to request a Thai court to enforce the award ordering Fullerton to transfer REC shares back to Symphony (i.e. that the ring-fencing would be effective to achieve its intended purpose). That was, of course, highly dubious and would depend in particular upon the state of knowledge of the transferee of the shares.

It appears that the draft opinion was then reviewed by Khun Supalun and Khun Sittiporn of SCB, a process which they suggested was entirely normal; “I think this is the way how we work, that when we receive a draft of comments and advice from the law firm, we review them and then we make comments or suggestions to it which we think is correct, and they are at their preview [sic] to change, review or even reject our comments” (Footnote: ³⁹⁹).

SCB then returned this Opinion to WCP on 22 April 2016, with various notes having been made by SCB’s legal department in track changes. The changes were designed to make the opinion even more unequivocal as to the lawfulness of the ring-fencing strategy and accordingly to protect SCB’s position. For example:

Khun Arthid had lunch with Khun Nop on 10 May 2016, which he said he did not remember: “First I couldn’t recall I have lunch with him, and I didn’t remember, even have – I had lunch with him, I didn’t remember.” (Footnote: ⁴⁰⁰) Khun Arthid further distanced himself from any discussions on the share transfer, stating that, “I never aware of – and I could confirm that Khun Nop never told me about selling the share to Khun Tassapon or Khun Anutin or Khun Kasem. I was aware about a structure when the – it first report at the ExCom.” (Footnote: ⁴⁰¹) This lunch meeting was not put to Khun Nop in cross examination. Nor is there anything in the documentary record to support an inference that Khun Arthid was told about the share transfer to Dr Kasem at this time.

On the evening of 10 May 2016, Khun Supalun of SCB sent a chaser email to Khun Phisit of WCP (copying Khun Sittiporn of SCB): “Further to our email below and our discussion last week regarding comments to the legal opinion to SCB on KPN matter, may we please follow up on the current status of the revised legal opinion krub? We appreciate your help on this matter.”

The documentary record suggests that Khun Arthid had lunch with Khun Nop and Khun Weerawong on 11 May 2016. Khun Nop was clear about Khun Arthid’s involvement in obtaining the First WCP Opinion: “I believe meeting with Khun Arthid and Khun Weerawong, and Khun Arthid mentioned that Khun Weerawong would satisfy his legal team. If SCB legal team okay then we can discuss further. That’s what I remember. And then the involvement on the legal side Khun Weerawong handled.” (Footnote: ⁴⁰²) However, nothing about the fact or content of this meeting was put to Khun Arthid in cross-examination (Footnote: ⁴⁰³).

On the same day, 11 May 2016, Khun Phisit emailed Khun Supalun and Khun Sittiporn: “Please consider our revised legal opinion as advised recently. If you have any further comment, please feel free to contact us.” This version was amended to meet SCB’s particular concerns, by (i) expanding the analysis of Symphony’s rights under Article 10.3.1 of the Fullerton SPA (an amendment subsequently largely deleted), (ii) clarifying that if Symphony were to sue REC and the new investor when a potential IPO of WEH was under consideration, the SEC might ask for further information (but in the absence of a court order prohibiting an IPO, it would not be necessary to wait until the conclusion of any litigation), and (iii) including further wording to explain that as long as any share sale was an honest sale and took place for value, it would not be possible for Mr Suppipat to cancel it under s.237 of the TCCC.

The following day, 12 May 2016, Khun Supalun sent a revised version back to Khun Phisit (copying Khun Sittiporn): “Thank you very much for your revised legal opinion krub. Please kindly see the attached file for our initial comments in marked-up for your consideration. Please however, do not yet issue the execution version of the opinion based on such revised draft since it may subject to any further comments from our senior management. We will confirm later whether additional comments would be added.” SCB’s amendments to this draft included:

Even after WCP had effected the transfer of shares to Dr Kasem, it continued to draft the First WCP Opinion in conjunction with SCB.

On 16 May 2016 Khun Supalun of SCB emailed Khun Phisit (copying Khun Sittiporn) a further version of the First WCP Opinion, stating “Please see the attached file for our additional comments on the legal opinion. Should all comments be acceptable to you, please kindly issue the execution version accordingly.”. This second batch of comments followed the first batch on 12 May. SCB’s further amendments included the deletion of wording which suggested that the person challenging the transfer did not have the burden of proving that the transaction was dishonest. Further, the 16 May version of the Opinion contains the statement that “the disposal, transfer or sale of assets will create no impact on the issue of payment of the share purchase price under the Share Purchase Agreement between Fullerton and Symphony, in which Fullerton retains the ability to make payment for Symphony in accordance with the agreement”. In cross-examination, Khun Weerawong frankly admitted, once again, that this was “Misleading. And it’s not right, because we shouldn’t say that. We as lawyer, how could we talk about ability to pay”. It was indeed misleading as I find that the purpose of the ring-fencing was in fact to ensure that Fullerton lost the ability to make payment to Symphony in accordance with the agreement, as Khun Weerawong knew full well.

Furthermore, the drafts exchanged between WCP and SCB in this period continued to refer to REC’s transfer of WEH shares in prospective terms despite the transfer purportedly (Footnote: ⁴⁰⁴) having taken place: e.g. “REC wishes to dispose of, transfer or sell all its assets and debts, including the WEH shares held by REC (61% of all WEH shares) to new investors”.

When Khun Wallaya was asked in cross-examination “why it is that it was appropriate for [SCB’s] legal department to make changes aimed at strengthening the opinion which [she said she] disagreed with as opposed to asking them for their opinion”, she asserted that (uninterpreted), “I think we want to make it more clear” (Footnote: ⁴⁰⁵). Further, she said that the comments “come from my team, not myself” and she “didn’t know [about this process of adding comments], because [she] wasn’t consulted or asked” as she “delegated the job to Khun Sittiporn and he had the authority to handle the task”. She claimed she had not seen the various drafts (Footnote: ⁴⁰⁶) and that the only draft she read was the final draft presented to ExCom (Footnote: ⁴⁰⁷).

In cross-examination, Khun Sittiporn insisted, “we want neutral opinion from WCP. … We want them as independent adviser to give a true opinion of the legal theory”. He sought to justify the legal team’s comments on the basis “we want to push back that, okay, they have to stand by their opinion, and if they cannot accept our proposal, then that means that the transaction is questionable. So we want to push it as far as possible to see that this is actually the fact, and then they can stand by their legal opinion.” (Footnote: ⁴⁰⁸). When asked why they “were trying to make the opinion stronger”, Khun Sittiporn said, “No because that’s the point, that because we want to ensure that whatever they do is according with the law and it is allowable under the SPA. There is no issue on the SPA, that would be coming back to unwind the transaction or any things like that” (Footnote: ⁴⁰⁹).

In the light of this evidence, whilst it is clear that Khun Weerawong knew that the First WCP Opinion was misleading, I accept that SCB may have simply been intending to protect their position by pushing WCP as far as they were willing to go in their support of the share transfer. In any event, despite SCB’s questionable approach, there is insufficient evidence to find that SCB knew that the opinion was misleading and colluded in the production of a misleading opinion.

I turn next to the transfer of the WEH shares to Dr Kasem. REC sold its 59.46% shareholding in WEH to Dr Kasem, whom the Defendants maintain was acting as agent for Khun Nop’s mother-in-law Madam Boonyachinda, for THB 2.4 billion (the Kasem Transfer). According to Khun Nop, he originally agreed the high-level terms of this sale, including in particular a price (“slightly above book value”), in March 2016. (Footnote: ⁴¹⁰)

Khun Nop maintains that he and Madam Boonyachinda had a pre-existing financial as well as familial relationship (Footnote: ⁴¹¹). Regarding Khun Nop’s choice to sell to a familial relation, Khun Weerawong said: “[M]y advice has always been that my clients need to comply with my advice, meaning that it has to be a payment made based on fair value. But I did not object the share transfer to family members, and that’s what we have discussed …” (Footnote: ⁴¹²). It was Madam Boonyachinda’s evidence that “Khun Nop … explained that if [she] didn’t buy the shares, the bank [would] turn the tap off, stop the financing and he will lose his investment” but that she made it a condition that her identity would not be disclosed. I do not believe her evidence.

The Claimants contend (and as will be seen I accept) that the ‘trigger’ for the sale was Symphony’s application to the ICC Emergency Arbitrator seeking to expand the scope of the Tribunal’s injunction concerning the REC Shares (see below); that the sale and transfer in fact occurred after 25 April 2016 and the relevant documents were backdated; (Footnote: ⁴¹³) and that Madam Boonyachinda only became involved much later in response to steps taken by Dr Kasem in Hong Kong in mid-2018. (Footnote: ⁴¹⁴)

REC Notices and Minutes

The next step in the dishonest ring-fencing scheme was to change the board of REC in order to give the impression that an independent board approved and oversaw the transfer of the shares to Dr Kasem, as well as seeking to protect Khun Nop, Khun Nuttawut, Mr Lakhaney and Khun Thun from legal action by Mr Suppipat and his companies. This was again one of the steps anticipated on the 7 April 2016 White Board.

Three REC board meetings are recorded as occurring on 22 and 25 April 2016 through a series of REC Notices and REC Board Minutes:

The Minutes record the resignation and replacement of the directors of REC and the unanimous resolution to sell 64,717,411 WEH shares to Dr Kasem.

The REC Minutes and Notices were prepared by WCP. (Footnote: ⁴¹⁵) According to Khun Weerawong: “Khun Pratumporn, I expect on the instructions of Khun Nop or Khun Thun, prepared the necessary notice and minutes of the REC board meetings that took place to replace the existing directors of the company and to transfer the shares in WEH to the new investor. I do not recall performing a detailed review of the documentation that was required to effect the change of directors but I am reminded by the documents shown to me (privilege in which is not waived) that I provided some input.” Khun Pratumporn is an associate at WCP. I find that Khun Weerawong was in fact at the heart of this next dishonest stage of the plan.

The REC Minutes purport to record the resignation and appointment of various REC directors.

The First, Second and Third REC Minutes (“the REC Minutes”), align with the Claimants’ pleaded case that:

Khun Weerawong claimed that the REC directors needed to resign because: “When you have conflict of interest or potential conflict of interest, you should not participate in the decision. In this case, I advise it because I am concerned with the fact that Khun Nop also – I don’t recall who were the directors at that point in time, but it seems that all of them have some kind of conflict…” (Footnote: ⁴²⁰). He said his “action … was aimed to make sure that the resolution adopted by the board has no legal flaw because directors have conflict of interest.” (Footnote: ⁴²¹) He admitted, however, that “...eventually if [Mr Suppipat], as he claim, could come back to become shareholder of REC, then the first thing that he would need to do is to sue everyone involved, based on the concept of conflict of interest.” (Footnote: ⁴²²) When Khun Nuttawut was asked about this change of directors in cross-examination, he asserted that Khun Nop made this decision based on WCP’s advice. However, he could not explain why WCP would give such advice.

Mr Lakhaney explained that he resigned because: “I think I had been superfluous for a long time. I joined REC to make it an investment company and it was just an empty shell at this point that didn’t do anything”. But REC still owned all the shares in WEH at this point, as Mr Lakhaney admitted (Footnote: ⁴²³). Mr Lakhaney’s evidence was that he understood from the 17 March meeting that WCP wished to deal with the execution of the new structure and that did not involve him. (Footnote: ⁴²⁴) It is his evidence that he simply signed the documents that were provided to him. He said that there was a resignation letter and two documents in Thai. Whilst the Thai documents were in fact the First REC Notice and the First REC Minutes, Mr Lakhaney claims that he was not aware of this at the time of signing. I do not believe this evidence. I do not consider that Mr Lakhaney would have been so cavalier in signing documents without understanding what they were.

Khun Thun apparently understood that because he was “sitting at WEH level”, a potential conflict of interest could arise, and he understood that it was considered appropriate for him to resign, which he did. (Footnote: ⁴²⁵)

In short, I do not accept the evidence of Mr Lakhaney and Khun Thun. I find that they knew – as the 7 April 2016 White Board made clear - that their removal as directors was an essential element of the dishonest ring-fencing scheme to which they were parties.

The corresponding appointments of three new incoming directors (“the New REC Directors”) are recorded in the First and Second REC Minutes. Khun Prai Bualuang, a retired Vice Admiral of the Thai military, and Khun Santi Piyatat, a practising lawyer, who founded his own law firm nearly 20 years earlier, were appointed to replace Khun Thun and Khun Nop. Khun Woranit Chaihan, a retired Captain of the Royal Thai Navy and a former Royal Guard, was appointed to replace Mr Lakhaney and Khun Nop’s brother, Khun Kris.

As to how the New REC Directors were chosen, Khun Nop’s evidence was that he approached his cousin, General Suwanamas, and sought his suggestions for the New REC Directors. Upon General Suwanamas’ advice, Khun Nop had an introductory meeting with the New REC Directors at the Sofitel Hotel, attended also by Khun Nuttawut and Khun Thun. He says that during this meeting, the New REC Directors were told what to expect of their role and of the need to sell WEH shares and the valuation. At the conclusion of the meeting, the New REC Directors agreed to act as directors and were paid fees in cash (Footnote: ⁴²⁶).

I find that these new directors were simply stooges to assist in the dishonest scheme.

The Third REC Minutes purport to record the unanimous resolution to sell 64,717,411 shares (c.59.45%) in WEH held by REC to Dr Kasem at the price of only THB 37.08 per share (i.e. a total purchase price of THB 2,400,000,000).

With regard to the meeting’s alleged “consideration” of the sale, it is recorded that “The said sale price was determined to be reasonable by the financial adviser of the Company, Ploenchit Capital Co., Ltd., which was appointed by the Company to evaluate the WEH shares held by the Company.” However, as is described below, the way in which this valuation was obtained from Ploenchit was itself dishonest and the Ploenchit report did not even exist at this time (25 April 2016).

Notably, a final signed version of the Third REC Notice and Minutes contains specific reference to Ploenchit (see below), rather than simply the “company’s financial adviser”. In response to the Claimants’ question as to whether the final signed version of the Third REC Notice and Minutes was drafted by WCP, Khun Weerawong said “I think so” (Footnote: ⁴²⁷). This was later corrected in re-examination (Footnote: ⁴²⁸) - the document was probably drafted much later during the Orix transaction in October 2016 (see below).

The creation dates of the REC Notices and Minutes are not agreed.

Khun Weerawong was willing to accept that the REC notices and minutes were drafted after the event, (Footnote: ⁴²⁹) but went so far as to suggest that this was a normal, acceptable practice:

“In my experience, it is not uncommon in Thailand for supporting documentation such as board minutes to be prepared after the meeting has taken place and I did not think it was unusual for board minutes to be finalised several months after the meeting had taken place. The lack of a formal board minute completed at the time does not negate the fact that the directors met on a particular day and voted on the matters in question.” (Footnote: ⁴³⁰)

In cross-examination, Khun Weerawong again asserted that minutes “would be prepared after the meeting” (Footnote: ⁴³¹) but added that “the wordings would have to come from someone at the meeting” (Footnote: ⁴³²) and that WCP associate Khun Pratumporn Somboonpoonpol had “said that she worked with the company secretary”; “she just draft it from (…) facts given by someone else” (Footnote: ⁴³³); “we don’t write something up by ourself because it’s not our practice” (Footnote: ⁴³⁴). Khun Weerawong also said that he understood there to have been informal written resolutions made at or prior to the relevant REC meetings, from which the formal minutes were subsequently derived – but that he never saw any such informal resolutions and was unable to say where any such documents would be located (Footnote: ⁴³⁵). He also alleged that “short form” minutes existed in April 2016 (Footnote: ⁴³⁶). However, no party has produced either (i) the purported “short form” minutes claimed to have existed in April 2016 or (ii) any contemporaneous documentation making reference to the alleged short form minutes.

I consider that all of Khun Weerawong’s evidence, by which he sought to explain away the drafting of these board minutes after the event, to have been dishonest and false. The manufacturing after the event of these minutes was simply a further element of the dishonest ring-fencing scheme, being part of the attempt to make it look legitimate.

I should add that I place no weight on the statements given to the Thai police by the New REC Directors, Khun Prai, Khun Woranit and by Khun Santi in a civil claim brought by him. They were not called to give evidence before me and their statements are in certain aspects obviously false (for example, Khun Santi said that “he approved the performance of the said legal act of the selling of shares on 25 April 2016”).

Kasem Agency Agreement

An agency agreement between Dr Kasem and Madam Boonyachinda was purportedly also entered into on 25 April 2016 (“Kasem Agency Agreement”). Under this agreement, Madam Boonyachinda supposedly appointed Dr Kasem as her agent to enter into an agreement with REC to purchase the WEH Shares, transfer them to a foreign company and hold the shares in the foreign company on her behalf. Madam Boonyachinda pretended to explain the need for an agency agreement and for secrecy “because of the 112 criminal case and because our family is civil servants, and at the time my husband was ill and we have a reverence — we hold reverence to the royal family and we could not get involved with this kind of criminal case” (Footnote: ⁴³⁷). She said that Dr Kasem was selected as agent because of “the urgency of the situation and … because Dr Kasem is Khun Nop’s father and because of the bank’s process of the KYC”.

Madam Boonyachinda’s explanation is immediately undermined by the fact that Khun Nop admitted in cross-examination that he did not even inform his lawyers that Madam Boonyachinda was the ultimate shareholder in the Kasem transfer despite the fact that he “knew that [his] lawyers were saying to SCB that the purchaser was [Dr] Kasem”.

The Kasem Agency Agreement was, once again, drafted by Khun Weerawong. I find that it was drafted for dishonest reasons. In his First Witness Statement, Khun Weerawong said that:

“58.

Shortly before the sale of the WEH shares took place, Khun Nop told me that Khunying Boonyachinda was to be the purchaser. He said that she did not want to be named and asked if Dr Kasem could act as her nominee. From a legal perspective this was possible. Given that Khunying Boonyachinda wanted to ensure that the arrangement was kept confidential, Khun Nop asked and I agreed to draft the Kasem Agency Agreement informally myself as a personal favour to him. I did not charge for the work and did not consider it appropriate to do so in the circumstances and where WCP was not taking Khunying Boonyachinda on as a client at this time.

59.

To minimise the risk of the undisclosed principal relationship being discovered, to the best of my recollection, I drafted the agency agreement by hand and then asked my secretary, Ms Sukanya Khongkerdlap, to type it up at home. Given that the arrangement was to be confidential, I did not want anyone else at WCP to find the agreement on the firm’s filing system.

60.

Once the agreement was typed up by my secretary, a physical copy of the document was handed to Khun Nop by me. I have since checked with my secretary, who confirmed that the laptop on which the agreement was typed up which belonged to her sister has been replaced and the original file is therefore no longer available.

61.

I was not involved in the execution of the Kasem Agency Agreement (or indeed the other documents recording the sale).” (Footnote: ⁴³⁸)

I do not believe this evidence, which I consider to be obviously false. The suggestion that Khun Weerawong would need to keep such a significant document secret from his own firm is frankly ridiculous.

Similarly, in cross-examination it was Khun Weerawong’s evidence that, before 25 April (Footnote: ⁴³⁹), he “asked [his] secretary to do it [prepare the Agency Agreement] outside of the office … Then she print[ed] [it] out and then deliver[ed] it to [him] … By hand …. [he] asked to .. meet Khun Nop outside of the office …. Then [he] deliver[ed] the document to him”. When asked why this elaborate procedure was necessary, Khun Weerawong alleged that it was “to be kept confidential, meaning that [his] colleagues shouldn’t have any information”. Additionally, he said that he did not consider that there was any need to disclose the agency arrangement to SCB nor did he understand that this arrangement would present any issues for SCB in circumstances where (i) the purpose of the arrangement was to implement the ring-fencing strategy, (ii) Madam Boonyachinda was as much a family member as Dr Kasem, and therefore all of the potential future benefits of any upside in WEH’s value would remain available to Khun Nop, and (iii) Khun Nop would have ongoing responsibility for the business of WEH regardless. (Footnote: ⁴⁴⁰) Again, I consider this evidence to be obviously untruthful. The suggestion that SCB would not care who the purchaser of the shares was, if it were another family member of Khun Nop’s, is also ridiculous.

Whilst Khun Weerawong said that he was not privy to the execution of the Kasem Agency Agreement, it was his evidence that Khun Nop confirmed to him shortly afterwards that it had been duly executed. (Footnote: ⁴⁴¹) Khun Weerawong denied that he created this document in 2018 and that it was deliberately backdated to 2016 in order to prevent Dr Kasem co-operating with the court in Hong Kong which in May 2018 had issued an injunction preventing dealing in the WEH shares (see below) (Footnote: ⁴⁴²).

The Defendants rely upon the fact that, they say, Khun Nop gave unchallenged evidence that the Kasem Agency Agreement was signed by Dr Kasem on 25 April 2016, which is corroborated by Khun Supaporn Wonganan’s (Khun Supaporn) evidence. However, the Claimants highlight that there is no Civil Evidence Act Statement for Khun Supaporn’s evidence and the Defendants failed to call her as a witness even though she is the only person who purportedly witnessed the signing of both the Kasem SPA and the Kasem Agency Agreement.

Similarly, Madam Boonyachinda alleged in cross-examination that she had “signed the … agency agreement with Dr Kasem in 2016” and said that “Both documents, the agency appointment documents and the other documents, they were prepared — they were arranged at the same time” (Footnote: ⁴⁴³).

However, Madam Boonyachinda’s evidence in cross-examination as to the whereabouts of the alleged hard copy of the Kasem Agency Agreement purportedly signed by her on 25 April 2016 was wholly unconvincing: “I didn’t keep it myself, but I have people who keep documentations for me. Because I’m old and my brains are not working well, people work for me would keep a copy for me.” (Footnote: ⁴⁴⁴) When asked to identify who would have kept her copy Madam Boonyachinda said “I have so many people working for me, I can’t really remember who exactly keep this document, but if I make an enquiry, I’m sure someone is keeping the document safe for me.” (Footnote: ⁴⁴⁵) When it was put to Madam Boonyachinda that she did not have any involvement at all with WEH before the middle of 2018, her evidence was “No, it’s not. I –my recollection confirm that it’s not, but I could be wrong…” (Footnote: ⁴⁴⁶). When asked what she did in relation to WEH before mid-2018, she said “I can’t remember but as far as I’m aware, I didn’t do anything…I can’t remember really.” (Footnote: ⁴⁴⁷) I find that the truth is that she did not have any involvement at all with WEH before the middle of 2018.

I accept the Claimants’ case that the Kasem Agency Agreement was backdated and actually produced for the first time on 14 May 2018 following the injunction relating to WEH shares which had been made by the High Court of the Hong Kong Special Administrative Region on 11 May 2018 with which Dr Kasem expressed an intention to fully comply (which I address next). I accept the Claimants’ contention that it was a method of circumventing this intention. Consistently with the Claimants’ case, the earliest version of the Kasem Agency Agreement has “Created Datetime” metadata of 14 May 2018. No party has produced a copy of the Agreement with metadata earlier that 14 May 2018. No native Word document version of the Kasem Agency Agreement exists.

Before turning next to explain the circumstances concerning the false creation of the backdated Kasem SPA itself, I set out my findings as to how the Kasem Agency Agreement was likewise falsely created and backdated in May 2018 in response to Dr Kasem’s ‘change of heart’ to cooperate with proceedings in Hong Kong in favour of Mr Suppipat, which meant that Khun Nop had to find another party who was willing to replace Kasem as nominee. I find as follows.

On 11 May 2018, Mr Suppipat’s Companies, on an ex parte application in Hong Kong proceedings HCCT 31/2018, were granted an injunction by the Hong Kong High Court against Golden Music to prevent it from disposing of or dealing with or diminishing the value of the 41,216,398 shares it held in WEH for the period up to and including 16:00 hours on 18 May 2018 (“the HK Injunction”). For context, Golden Music is the SPV referred to on the 7 April 2016 White Board which received part of the Relevant WEH Shares and further distanced them from Mr Suppipat’s reach. The Claimants have alleged (and I accept) that Golden Music held those shares as a nominee for Khun Nop.

On 14 May 2018, Mr Suppipat’s Companies, through their legal representatives Deacons, notified Golden Music and Kasem of the HK Injunction. I find that as a result on or about this date the Kasem Agency Agreement was created and backdated by Khun Nop, Khun Nuttawut and Khun Weerawong.

Golden Music did not attend the return date on 18 May 2018 and the HK Injunction was continued until further order. On 21 May Symphony wrote to Golden Music’s directors informing them of this.

On 22 May 2018, Dr Kasem, “in [his] capacity as the majority shareholder” of Golden Music wrote to Christian Iuliano, Artemis Enterprises Ltd and Bartley Advisors Ltd, as “the directors and nominal shareholder” of Golden Music, “RE: REQUEST FOR GENERAL MEETING OF GOLDEN MUSIC LIMITED”. He set out how he has “been notified, under cover of a letter from Deacons dated 14 May 2018, that I am the majority shareholder of [Golden Music]” and has been informed about the Hong Kong Injunction Order, with which he “intend[s] to act in full compliance” and to ensure he is able to do so, “request[s] the directors of [Golden Music] to call for a General Meeting” to ensure compliance with the Order. He expressly put the directors on notice that:

“(a)

I shall maintain and preserve my present majority shareholding…

(b)

I have not authorized, approved or entered into any arrangement transferring any of my present majority shareholding in the Company to any other person or party. If the Company should receive any information or documentation that purports to effect a transfer of any part of my shareholding in the Company, the Company shall disregard and treat these as unlawful and contact me directly and immediately for clarification and confirmation.”

On 23 May 2018, having learned of these developments, Madam Boonyachinda wrote to Premier Fiduciary Limited (Premier), instructing them to appoint and register Khun Surat Chiracharasporn (Khun Surat) as the new director of Golden Music, which took place on 24 May 2018. Khun Surat said that he “never spoke to Madam Boonyachinda” but “when [he] was offered the job by Khun Weerawong and Khun Nop [he] had no reason to question the offer because normally Khun Weerawong would offer [him] a job occasionally … job like being a director of companies … they’re not like permanent jobs”. Further, he said that “[t]he company is an SPV and it was set up to hold shares and it would – it need to have the director to hand over documentation” (Footnote: ⁴⁴⁸) and that he was “told briefly that [his] job was to execute documents of the company” (Footnote: ⁴⁴⁹). He said he did not speak to the outgoing directors (Footnote: ⁴⁵⁰). This is obviously highly suspicious.

A letter dated 24 May 2018 was sent to DLA Piper by Khun Surat confirming that Madam Boonyachinda was the beneficial owner of the 459,109,350 shares registered under Dr Kasem’s name. In cross-examination, Khun Surat indicated that Khun Weerawong had asked someone to bring this letter to him. Further, he confirmed that he would have signed “[w]hatever Mr Weerawong had written” (Footnote: ⁴⁵¹). Khun Weerawong was clearly centrally involved in these dishonest events.

A further letter dated 24 May 2018 was sent by Khun Weerawong to DLA Piper and confirms the same beneficial ownership structure. The letter refers to the Kasem Agency Agreement (discussed above) and states that:

“Based on our review of the Agency Appointment Agreement, we hereby confirm that, in accordance with the relevant laws of Thailand, Khun Ying Kokeow Boonyachinda, the undisclosed principal, is the ultimate beneficiary owner of the 459,109,350 shares of the Golden Music Limited currently registered under the name of Mr Kasem Narongdej, the agent.”

By a letter dated 25 May 2018 Madam Boonyachinda wrote to Khun Surat, enclosing the Kasem Agency Agreement and an Instrument of Transfer and stating:

“I, as beneficiary owner and legitimate shareholder in the Company, hereby notify you as a sole director nominated by me as follows:

I hereby notify you that 459,109,350 shares…now registered under the name of Mr Kasem Narongdej in the books of the Company do not belong to him but to me and that he holds the Shares as my nominee according to the Agency Appointment Agreement

I hereby notify you that the Agency Appointment Agreement was terminated and I would like to disclose myself as the legitimate owner of the Shares.

I hereby request you to issue the director resolution approving the transfer of Shares from Mr Kasem Narongdej to me according to the Instrument of Transfer…”

On 7 June 2018, Baker & McKenzie wrote to Golden Music, Khun Surat and Bartley Advisors Limited, “on behalf of” Dr Kasem. This letter explains that Dr Kasem has received no response to his letter of 22 May and has become aware that Khun Surat is the new director. As such, it reiterates the request for a General Meeting with the intention of proposing a resolution that Khun Surat be removed from office since “As the majority shareholder of the Company, Dr Narongdej has grave concerns as to the present governance and management of the Company, and in particular, whether this will jeopardise the compliance with the Order…”.

Further, the recipients are put on notice that:

“(a)

Dr Narongdej shall maintain and preserve his majority shareholding…

(b)

Dr Narongdej has not and will not authorise, approve or enter into any arrangement transferring any of his present majority shareholding in the Company to any other person or party. If the Company should receive any information or documentation that purports to effect a transfer of any part of my [sic] shareholding in the Company, the Company shall disregard and treat these as unlawful and contact our Firm directly and immediately for clarification and confirmation…”

Despite this, on 13 June 2018 Khun Surat signed a resolution approving the transfer of Dr Kasem’s shares in Golden Music to Madam Boonyachinda pursuant to an instrument of transfer and resolving to enter her name into the Register of Members. Khun Surat admitted that he had “seen the Hong Kong injunction … after [he had] taken on the directorship around June or July”. However, he asserted that he “did not know” about the injunction and the letter from Dr Kasem before he signed the resolution on 13 June. On 14 June 2018 Khun Surat requested Premier HK to modify Golden Music’s shareholder register to reflect the transfer to Madam Boonyachinda.

On 18 June 2018 Premier HK notified Khun Surat that the resolution could not be effected as “…there are now clear instructions that the shareholder [Kasem] does not want any shares transferred from his name”. On 19 June 2018 Premier HK informed Dr Kasem of Khun Surat’s request and Kasem responded again confirming he had not authorized any such transfer. On 20 June 2018 Baker & McKenzie on behalf of Dr Kasem again wrote to Khun Surat reiterating that Kasem had neither agreed to nor executed any agreement, instrument of transfer or bought and sold notes to transfer his Golden Music shares to Madam Boonyachinda. On 21 June 2018 Dr Kasem made a statement to the Hong Kong police in connection with the transfer to Madam Boonyachinda.

Despite all this, on 25 June 2018 Khun Surat recorded the transfer of 459,109,350 shares in Golden Music from Dr Kasem to Madam Boonyachinda on the basis of an undated instrument of transfer and undated bought and sold notes which do not record any consideration having been received for the shares but purportedly bear the signature of both Dr Kasem and Madam Boonyachinda. Madam Boonyachinda was now registered as the holder of the Golden Music Shares. Dr Kasem subsequently impugned the authenticity of these documents.

On 26 June 2018 DLA Piper HK on behalf of Golden Music wrote to Baker & McKenzie on behalf of Dr Kasem, referring to the Kasem Agency Agreement and stating that Khun Surat was satisfied that “(b) Dr Kasem has acted as the agent of KY [Madam Boonyachinda] in acquiring the WEH Shares and the GML Shares; and (c) Dr Kasem is holding the GML Shares on trust for KY.”

On 27 June 2018 Mr Suppipat’s Companies made another ex parte application to the Hong Kong court in proceedings HCCT 31/2018 to appoint a receiver over the Golden Music Shares. The receivership application was dismissed. Mr Suppipat’s Companies appealed.

On 29 June Dr Kasem applied ex parte in the Hong Kong proceedings HCA 1525/2018 for an injunction restraining Khun Nop and Madam Boonyachinda from dealing with the shares in Golden Music registered in Madam Boonyachinda’s name. The Hong Kong court granted this injunction (the Kasem Injunction). On 3 July 2018 Dr Kasem sought an order that the Golden Music share transfer be reversed and asserting his beneficial ownership of those shares. On 5 July 2018 Dr Kasem applied for leave to serve the Kasem Injunction.

Between 5 and 6 July 2018 Madam Boonyachinda and REC made 18 transfers of funds between them totalling THB 970,133,884.

On 10 July 2018 the Hong Kong Court of Appeal dismissed Mr Suppipat’s Companies’ appeal against the dismissal of their renewed ex parte application to appoint a receiver over the Golden Music Shares. The following day, Dr Kasem’s solicitors threatened to apply for an injunction restraining GML from dealing with its WEH Shares.

On 12 July 2018 Khun Nop made an affirmation in the Kasem Injunction proceedings in which he asserted that Madam Boonyachinda beneficially owned the WEH shares transferred to Kasem as well as the shares in Golden Music; and that Madam Boonyachinda had paid approximately $68m to REC in respect of the WEH shares.

On 23 July 2018 Baker & McKenzie on behalf of Kasem wrote to DLA Piper on behalf of Golden Music, repeating: “We reiterate that our client takes issue with the authenticity and validity of the documents relied upon to effect the transfer of shares in his name to Ms Khunying Kokeow Boonyachinda. It is imperative that our client is given immediate access to the documents relied upon to effect the transfer.”

Ultimately, the claims brought by both Mr Suppipat’s Companies and Dr Kasem before the Hong Kong courts failed.

Kasem SPA

Supposedly dated on the same day on which the Kasem Agency Agreement purports to be dated, namely 25 April 2016, a Share Purchase Agreement (the Kasem SPA) records the agreement to sell 64,717,411 shares (c.59.45%) in WEH held by REC to Dr Kasem. By clause 3.2 thereof the consideration was payable in 4 instalments between 25 August 2016 and 25 May 2017. The Kasem SPA was drafted by WCP (Footnote: ⁴⁵²) (which is common ground) and purports to be signed by (i) Khun Santi and Khun Prai for REC, and (ii) Dr Kasem.

On the Claimants’ case, the Kasem SPA was created on 17 May 2016 or later. In this regard, Khun Weerawong’s privilege log refers to a “Draft share purchase agreement between Dr Kasem and REC re WEH shares” of 17 May 2016. The log also lists an “Email in relation to the share sale and purchase transaction between Dr Kasem and REC” of 12 October 2016. Further entries in the privilege log refer to circulating drafts of the Kasem SPA on 18, 25 and 26 October 2016. As such, the earliest contemporaneous reference to an SPA between REC and Dr Kasem is on 17 May 2016 (but it may have been created later).

The Claimants highlight that the earliest signed copy of the Kasem SPA has a “Created Datetime” metadata of 29 October 2016 (First Signed Kasem SPA). However, Khun Nop and Khun Nuttawut submit that the “Created Datetime” is the date on which a PDF document is created or compiled and is not dispositive of the question of when the underlying original document was created and/or signed (where the PDF is evidence of the signature).

I reject the Defendants’ case that Dr Kasem signed the original version of the Kasem SPA in the presence of Khun Nop and Khun Supaporn at the Narongdej house on the date stated on it, namely 25 April 2016. As already mentioned, the only supposed witness to the signing of the Kasem SPA (other than Khun Nop), Khun Supaporn, has not been called by any of the Defendants to give evidence in these proceedings (Footnote: ⁴⁵³) (although she did give sworn testimony in Hong Kong).

Khun Nop’s evidence, which the Defendants say was unchallenged, was that: “With respect to the signing of the Kasem SPA and the Agency Agreement, I remember these events clearly because my father’s birthday is 24 April and I asked him to sign the documents the day after his birthday, on 25 April 2016. …. Ms Wongnan took the Kasem SPA to the house. The Kasem SPA was signed in the same area [as the Agency Agreement] after that was explained to Kasem. When both documents had been signed, I took the Agency Agreement to KKB to sign on the same day. I do not know what happened to the Kasem SPA. … Once the Kassem SPA was signed, I am not sure where it was taken, however, to the best of my recollection Khun Supaporn took that away. I did not take it with me” (Footnote: ⁴⁵⁴). Madam Boonyachinda alleged that she “remember[ed] vaguely that [Khun Nop] had witnessed his father signing the SPA when the document were presented to me”. Further, Khun Weerawong gave oral evidence that Khun Pratumporn told him on or around 10 May that she had already sent the documents for signature for Khun Nop to take to Dr Kasem to sign on 25 April (Footnote: ⁴⁵⁵) and that his colleagues confirmed there was an SPA at the time of the Second WCP Opinion (Footnote: ⁴⁵⁶).

Whilst the Defendants say Khun Nop’s evidence on the signing of the key documents by Kasem on 25 April 2016 was unchallenged, I do not accept that. The following cross-examination took place:

“Q. Can you explain why there is no copy of the transfer to your father, which bears a date which is earlier than May 2016?

A. Which document are you referring to, please?

Q. The transfer to your father

…

Q. … if we look at {G4/379.15}, that is a signed version and that has a created date of 13 May. I suggest to you that these documents were all created after Mr Suppipat had made his application for a prohibition on sale of the WEH shares?

A. I disagree with that.

Q. Let's have a look at {G4/379.30}. This is the SPA said to have been entered into on 25 April 2016 between KPN Energy and your father to purchase the shares. Now, this document has a created date of 29 October 2016, and we have not been able to find any version of it, signed or unsigned, before October. Can you explain that?

A. For this SPA, my Lord, I witness my father sign when Ms Supaporn brought the document to the house, and I learn about this at a later stage, that we need to -- not to, I would say, rather amending the contract on the interests, but I think the lawyer just decide to keep the signing page, and redo the front part on the interest only, which I did explain to my father, that is what I remember on this.

Q. When do you say that you witnessed your father sign?

A. On 25 April.

Q. Then you say the lawyer decided to keep the signing page and redo the front part?

A. Yes.

Q. What do you mean by that?

A. There is an interest clause in this, that is what I explained, and I did explain to my father about that. But I don't know the details. This is what I got from the lawyer, the WCP lawyer, on the interest clause.

…

Q. Let's have a look at {G4/379.41}, which is the agency appointment agreement, and that is one which, if we look at page 6 {G4/379.41/6}, that's on the left-hand side, that is a signature of Madam Boonyachinda, your signature as witness, and the signature is said to be that of Khun Kasem?

A. Yes.

Q. And again, the metadata of this is, and the earliest one we have been able to find, is 14 May 2018?

A. That is impossible, because Mr Weerawong hand this document to me myself, and then I took the document for my father to sign.

Q. So you stand by your evidence, do you, that none of these documents were backdated; it was a genuine transfer of directors in April of 2016, yes?

A. Yes, on the 25th, because this is the document that I took for my father to sign.

Q. You know that your father denies signing, don't you?

A. Yes, and there is a court ruling in Thailand about this already, that we didn't force his signature.

Q. There is a court ruling that your father did not turn up to give evidence that his signature was forged, and therefore despite the expert evidence suggesting that it was not a genuine signature, the application was dismissed; that is correct?

A. Not only that, they also look into the intention of forgery, his signature, and they also look into the -- who really the investor for the company, and the conclusion is that it is not the family, it's me. …”

I am unwilling to rely on any of Khun Nop’s evidence unless it is corroborated by a genuine contemporaneous document. His evidence in this respect is not so corroborated. I find that the Kasem SPA was created after 25 April 2016. There is no documentary evidence of a signed or unsigned SPA created before this date. I therefore do not accept that Khun Nop witnessed his father signing the Kasem SPA on 25 April 2016.

This finding is strongly supported by the fact that in cross-examination, Mr Lakhaney was shown an email he sent on 27 October 2016 to Ms Collins and Khun Thun where, following a request from a potential purchaser of WEH (Orix – see further below) for the relevant transaction documents, he stated: “Nuttawut tells me everything will be approved tonight, signed tomorrow by Dr Kasem…”. Mr Lakhaney admitted that he recalled that the significant item missing or remaining to be signed was the Kasem SPA and that he spoke to Khun Nuttawut about this (Footnote: ⁴⁵⁷). Otherwise, the WEH Managers claim that they were not involved in the Kasem SPA or the Kasem Transfer Instrument, and the circumstances in which those documents came to be produced are beyond their knowledge (Footnote: ⁴⁵⁸). Notably, neither Khun Thun nor Ms Collins replied to Mr Lakhaney’s 27 October email raising any queries – this strongly suggests, and I find, that they too were aware that (at least) the Kasem SPA had not been signed as of 25 April 2016 and indeed, was not signed until much later.

I consider it likely that the WEH shares were as a matter of fact transferred to Dr Kasem sometime in May 2016. In any event, I find as a fact, in the light of all the surrounding evidence, that Khun Nop, Khun Nuttawut, Khun Weerawong, Khun Thun, Mr Lakhaney and Ms Collins all knew that the shares had been so transferred and that this was designed to put them beyond the reach of Mr Suppipat’s creditor-companies.

Kasem Transfer Instrument

It is common ground that as a matter of Thai law, the operative step in effecting the sale of a private limited company subject to the Thai Civil and Commercial Code (TCCC) is the transfer of shares (rather than the contract for sale).

The share transfer instrument for the Kasem Transfer (Footnote: ⁴⁵⁹) (“the Kasem Transfer Instrument”), according to which the WEH Shares were transferred to Dr Kasem, is on its face likewise dated 25 April 2016. It was drafted by WCP (which is common ground).

On the Claimant’s case, the Kasem Transfer Instrument was in reality created on 12 May 2016 or later. Even on the Defendants’ case, the Transfer Instrument was created on or before 13 May 2016.

The earliest unsigned version of the Kasem Transfer Instrument has “Created Datetime” metadata of 12 May 2016. The earliest signed version of the Kasem Transfer Instrument has “Created Datetime” metadata of 13 May 2016. No party has produced a version of the Kasem Transfer Instrument with earlier metadata. Two further versions of the Kasem Transfer Instrument have a created or family date 13 May 2016.

Khun Weerawong’s written evidence was that he was not involved in preparing the Kasem Transfer Instrument and does not know when or how it was executed by Dr Kasem. However, it is Khun Weerawong’s understanding that the sale of the Relevant WEH Shares to Dr Kasem proceeded, with the approval of the New REC Directors, on 25 April 2016. This understanding derives in particular from (i) Khun Pratumporn having allegedly told Khun Weerawong that the share transfer documentation had been given to Khun Nop for signature by Dr Kasem on 25 April, (Footnote: ⁴⁶⁰) (ii) from the date borne by the Kasem Transfer Instrument (recording the transfer of the Relevant WEH Shares from REC to Kasem), (Footnote: ⁴⁶¹) and (iii) from Khun Weerawong having supposedly drafted the Kasem Agency Agreement around 25 April 2016. (Footnote: ⁴⁶²)

The receipt for stamp duty for the Kasem Transfer is dated 10 May 2016. Khun Nop and Khun Nuttawut highlight that this was 15 days after the execution of the share transfer on the date it bears, 25 April 2016, with 15 days being the period of time allowed by Thai law for the payment of duty following a transfer.

On 18 May 2016, WEH’s shareholder list was submitted to the Thai companies register showing Kasem as the legal owner of the shares as at 25 April.

In the light of the foregoing, whilst I do not accept that it occurred on 25 April 2016, it is not possible to establish precisely when the Kasem Transfer Instrument was created.

Tassapon Transfer Instrument and Revenue Receipt

Curiously, a further share transfer instrument also purportedly dated 25 April 2016 - which names Khun Tassapon Bijleveld (Khun Tassapon) as opposed to Dr Kasem as transferee but is otherwise identical - was also produced and signed by Khun Prai, Khun Woranit and Khun Santi (Tassapon Transfer Instrument).

An unsigned Tassapon Transfer Instrument was attached to an email sent on 9 May 2016 from WCP to Khun Nop’s personal assistant at the KPN Group, copying in Khun Weerawong and Khun Nuttawut. The email itself states, “Khun A, Please find attached the share transfer instruments for your signing arrangement …”. Notably, this occurred at a time when, on the Defendants’ own case, the same REC shares had already been transferred to Dr Kasem pursuant to the Kasem SPA and Kasem Transfer Instrument dated 25 April 2016. The falsity of the case advanced by Khun Nop, Khun Nuttawut and Khun Weerawong regarding the signature of the Kasem SPA is accordingly transparent.

In cross-examination, Khun Nuttawut said, when asked about this 9 May 2016 email, “I didn’t pay attention, and I did not do the coordinating of everything”. Khun Weerawong did not respond to the email and in cross-examination said, “I don’t read all the emails that’s sent to me”.

On the Claimants’ case, the Tassapon Transfer Instrument was created on 8 May 2016. On Khun Nop’s case, it was created on or before 8 May 2016. The unsigned Transfer Instrument has “Created Datetime” metadata of 8 May 2016. I find as fact that the document was created on 8 May 2016.

Further, a revenue receipt for stamp duty regarding the supposed transfer to Khun Tassapon was produced on 10 May 2016. In cross-examination, Khun Weerawong said that, “[t]he mistake was my associate because she should have looked at it when she got it back instead of just carry it to the Revenue department, got it paid and then realised later on”. However, Khun Weerawong was unable to explain why the draft transfer instrument was sent by email dated 9 May and denied knowing about a proposed sale to Khun Tassapon. Khun Weerawong confirmed that “the truth is that the Revenue department first stamped a copy of the share transfer in favour of Khun Tassapon and were then asked to use the same money and the same receipt to transfer to Khun Kasem”. He said this was “because they knew that it’s a mistake”. Whilst this mistake was apparently rectified on 11 or 13 May, the revenue did not change the date from 10 May. (Footnote: ⁴⁶³) I reject Khun Weerawong’s evidence; I consider that he is lying about this.

Also on 10 May 2016, Khun Pratumporn emailed Khun Thidarat (of KPN) copying Khun Nuttawut and stated: “As discussed just now, please print out 5 copies of the blank share transfer documents as attached, and arrange for K Tassapon to execute all copies”. This attached a blank share transfer instrument for the transfer of WEH shares from Khun Tassapon to an unidentified recipient which was left blank.

In cross-examination, Khun Nop alleged that the “confusion” arose from the fact Dr Kasem did not immediately agree to be Madam Boonyachinda’s nominee and, as a result, he “touch[ed] base with Khun Tassapon in case [he was needed as] a backup”. Khun Nop said he communicated this alternative to Khun Nuttawut, who instructed WCP, but failed to “update” Khun Nuttawut when Dr Kasem ultimately agreed to act as nominee. I find that this evidence is also a lie.

Unsurprisingly, even Khun Nop could not explain why Khun Santi and Khun Prai were signing a share transfer instrument on 10 May 2016, prepared the previous day, in favour of Khun Tassapon, if there had already been a completed sale to Dr Kasem on 25 April 2016: “I don’t know, to tell you the truth. I don’t know why he sign. And I am not the one who took the document for him to sign.” (Footnote: ⁴⁶⁴) Khun Nop conceded the obvious, namely that if anybody knew that there had been a sale to his father on 25 April 2016, they could not possibly agree with there being a transfer to Mr Tassapon on 10 May 2016 (Footnote: ⁴⁶⁵).

Khun Nuttawut was also asked to explain why a transfer form to Khun Tassapon had been prepared and unsurprisingly he had no explanation for this: “I do not recall – I do not remember why there is a document regarding Tassapon. I do not – I cannot explain. There might be a preparation of something, a discussion about.” (Footnote: ⁴⁶⁶) Khun Nuttawut accordingly sought to distance himself from this falsehood: “I do not involve in this. I only heard Tassapon is one of the person that Khun Nop would like to discuss with…. There is a conversation, if I am not wrong, during which the ring-fence, that either Khun Nop would like to have his father or have Tassapon as the buyer.” (Footnote: ⁴⁶⁷) But when it was pointed out that he was copied in on the relevant email exchanges, Khun Nuttawut was forced to pretend that he did not read them: “I do not remember I see this one back then, even though I have cc in there, there is several document my Lord, that I don’t pay attention to, especially the one which is not addressed to me.” (Footnote: ⁴⁶⁸) This evidence was again a barefaced lie.