Sang Cheol Woo v Charles C. Spackman
| Jurisdiction | British Virgin Islands |
| Judge | Wallbank, J |
| Judgment Date | 12 January 2021 |
| Neutral Citation | VG 2021 HC 3 |
| Date | 12 January 2021 |
| Docket Number | CLAIM NO. BVIHCM 58/2019 |
| Court | High Court (British Virgin Islands) |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(COMMERCIAL DIVISION)
CLAIM NO. BVIHCM 58/2019
(Aka Yoo Shin Choi)
Mr. Merrick Ricardo Watson, with him Mr. Timothy de Swardt of Kobre & Kim (BVI) LP, for the Applicant.
No appearance was entered on behalf of the Respondent
Judgment Enforcement — Order for personal judgment debtor to attend court to be examined — judgment debtor resident and domiciled outside of the jurisdiction — whether Court has jurisdiction to grant committal order against judgment debtor abroad — whether committal order with extraterritorial effect served a practical purpose — whether Court can proceed in the absence of the defendant to hear an application for committal — whether examination order was served on judgment debtor — whether the Court should exercise its discretion to dispense of the requirement for personal service — whether permission required to serve examination order incidental to underlying claim in which permission to serve the claim form outside of the jurisdiction had previously been granted — whether permission required to serve committal application incidental to examination order outside of the jurisdiction — whether examination order and committal application can be validly served by means of alternative service so as to satisfy the requires of the Civil Procedures Rules, 2000 — CPR Part 7, CPR Part 44 and CPR Part 53.
The judgment creditor obtained an order for the examination of a judgment debtor over whom the Court had previously established jurisdiction by granting permission for the claim form to be served out of the jurisdiction on the judgment debtor. The judgment debtor who resides outside of the jurisdiction failed to appear before the Court for his examination after being served with/given notice of the examination order. The judgment creditor applied for an order to commit the judgment debtor to prison for a period of 12 months under CPR Part 53 and the Court's inherent jurisdiction to punish for civil contempt.
Held:
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1. The Court has inherent jurisdiction to make a committal order with extraterritorial effect against a judgment debtor who resides outside of the jurisdiction;
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2. The Court's inherent jurisdiction is preserved but not limited by section 10 of the Contempt of Court Act, CAP. 14;
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3. Where the Court has previously granted permission to serve the claim form outside of the jurisdiction on the judgment debtor, the judgment creditor is not required to seek fresh permission to serve any order, application or document subsequently issued or made in the proceedings including an examination order and a committal application;
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4. The question of whether the judgment debtor had been served with the examination order is a question of fact. Where the Court is satisfied, on the evidence, that the judgment debtor was served under the terms of an alternative service order made by the Court, the Court reserves a discretion to order that such service was good service or to hold that service was sufficient to give the judgment debtor notice of the order for the purposes of making a committal order against the judgment debtor;
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5. There are practical reasons for the Court to make a committal order where a judgment debtor has refused to engage with the proceedings and has flouted the Court's authority. A committal order in such cases can work to secure compliance with the breached order and ensure respect for the administration of justice.
Wallbank, J [Ag.]: This ruling concerns an application (‘the Committal Application’) brought by the Applicant, Mr. Woo, for a declaration of contempt and an order committing the Respondent, Mr. Spackman, to prison. The Applicant alleges that the Respondent failed to comply with an order made by the Court on 20 th August 2020 commanding the Respondent to appear before the Court on 16 th September 2020 to be examined under oath by Counsel representing the Applicant (‘the Examination Order’).
The Committal Application was supported by an affirmation made by the Applicant on 24 th November 2020.
On 12 th January 2020, I heard the Committal Application remotely via Zoom 1 and in the absence of the judgment debtor who, from the evidence led by learned Counsel for the Applicant, Mr. Watson, appeared to have been served or at the very least had notice of the hearing.
At the end of the hearing, I granted the Committal Application and made an order committing the Respondent to prison for a period of 12 months for his failure to comply with the Examination Order. At the urging of Mr. Watson, I promised to provide written reasons at a later date.
I am mindful that the Committal Application engages some novel and complex issues of law in this jurisdiction and for that reason, I take the view that a written judgment dealing with the relevant principles is appropriate. I am also mindful that the Respondent did not appear and thus made no submissions, such that the propositions advanced by Mr. Watson were not subjected to counter-argument. Nonetheless, similar arguments have on at least two previous occasions been advanced by applicants such that it would be appropriate to record the analysis, such that it might either be followed or possibly better tested in the future.
These now are my reasons for granting the Committal Application.
We can pick up the story from 29 th September 2011 when the Applicant obtained a monetary judgment in the amount of Korean Won (‘KRW’) 5,207,884,800 (equivalent at the time to approximately US $4.6 million) plus interest, which the Respondent appealed unsuccessfully against (‘the Korean Judgment’).
The Applicant took steps to enforce the Korean Judgment in various jurisdictions including in the BVI, Hong Kong, the United States and Singapore. To summarize, the Applicant, among other steps:
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(1) took discovery in aid of enforcement pursuant to 28 U.S.C. § 1782 in both Connecticut and Massachusetts respectively; 2
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(2) initiated enforcement proceedings in Hong Kong 3 where he obtained a worldwide injunction order dated 3 rd June 2019 against the Respondent and 3 of his alleged nominees; 4
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(3) successfully applied to recognize the Korean Judgment in New York 5 where on 11 th September 2018 he obtained summary judgment enforcing the Korean Judgment.
The Applicant also sought post-judgment enforcement and discovery in this court before Adderley J (Ag.) where he:
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(1) applied for and was granted Norwich Pharmacal discovery against the registered agents of certain BVI companies (‘the BVI Companies’) believed to be owned by the Respondent and used to conceal and dissipate his interest in Spackman Media Group Limited; 6
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(2) obtained freezing injunctions against the BVI Companies (‘the Freezing Injunctions’). 7
The Freezing Injunctions were sought against the BVI Companies in order to protect against any further dissipation of their assets. As a condition of granting the Freezing Injunctions, Adderley J (Ag.) ordered the Applicant to file a claim form and statement of claim to have the Korean Judgment recognized and enforced at common law in the BVI (‘the Common Law Enforcement Claim’).
On 18 th April 2019, the Applicant filed the Common Law Enforcement Claim in compliance with that condition.
On 4 th October 2019, the Applicant sought for permission to serve the Common Law Enforcement Claim out of the jurisdiction personally on the Respondent, at a particular address in Hong Kong (‘the Hong Kong Address’) or wherever he may be found.
The Applicant sought permission to effect personal service on the Respondent at the Hong Kong Address because the Respondent filed evidence in related enforcement proceedings in Hong Kong 8 and Singapore 9, confirming the Hong Kong Address to be his address.
On 21 st November 2019, Jack J (Ag.) made an order granting the Applicant permission to serve the Respondent personally, at the Hong Kong Address, with the Common Law Enforcement Claim (‘the Service Out Order’).
In his affirmation in support of the Committal Application, the Applicant pointed the Court to evidence that numerous attempts were made to locate and serve the Respondent at the Hong Kong Address which proved unsuccessful.
According to the evidence, the process server was told by the receptionist of the building in which the Hong Kong Address is located that the Hong Kong Address was vacant. 10
Faced with difficulties in locating the Respondent to effect personal service of the Common Law Enforcement Claim on him, on 28 th February 2020 the Applicant was forced to file an application for permission to serve the Respondent out of the jurisdiction by alternative means under rule 7.8A, Civil Procedure Rules 2000) (‘CPR’) (‘the Alternative Service Application’).
The Alternative Service Application was supported by affidavits filed by attorneys in Kobre & Kim's Hong Kong and New York offices, Mr. Han and Mr. Stein respectively. The evidence established that in relation to the Applicant's efforts to enforce the Korean Judgment in New York, attempts were made on 14 th June 2019 to serve a post-judgment information subpoena on the Respondent by mailing it to an address associated with the Respondent in Cambridge, Massachusetts and by sending it via FedEx to Counsel currently representing the Respondent in the related enforcement proceedings in Hong Kong, John C.H. Suen (‘Mr. Suen’).
Mr. Suen maintained that he was not authorized to accept service on behalf of the Respondent but did not dispute that he presently acted for the Respondent in the Hong Kong proceedings.
On 26 th February 2020, the New York court...
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