[2025] EWHC 2480 (Ch)

The Parties

TWPS

The First Claimant, Transworld Payment Solutions UK Ltd (“TWPS”), is a company which was incorporated in England and Wales on 23 October 1979 and registered under company registration no. 01456234. The nominal share capital of the company was £1,001,000. On 21 September 2010 it was struck of the register and on 5 October 2010 it was dissolved. On 6 August 2014 Mr Tim Bramston, who was then a partner in Griffins, a firm of licensed insolvency practitioners (“Griffins”), applied to restore TWPS to the register and to wind up the company. Mr Bramston issued the petition in his capacity as the liquidator of a company called TC Catering Supplies Limited (“TC Catering”). On 22 August 2014 the petition was advertised and in September 2014 TWPS was restored to the register and put into compulsory liquidation.

Mr Hunt

On 17 November 2014 the Second Claimant, Mr Stephen Hunt, was appointed to be the liquidator of the TWPS. He is (and was) a partner in Griffins and he brings the claims in this action in his own name and in the name of the company itself. Mr Hunt is also the liquidator of ten companies which I list below together with the dates on which each company first went into liquidation (although in a number of cases Mr Hunt was not the original liquidator):

By a series of letters dated 17 September 2020 Mr Hunt gave notice to the Defendants that each of these companies had assigned two kinds of claim to TWPS defined in the letter as the “Assignor Company Claims” and the “Assignor Liquidator Claims”. He also gave notice to the Defendants that a further nine companies had assigned their claims to TWPS. The liquidator of six of those companies was Ms Michaela Hall, who was a partner in Moore Kingston Smith (formerly Kingston Smith & Partners) (“MKS”) between 2011 and her retirement in 2022. The liquidator of the remaining three companies was Mr Kevin Goldfarb, who was also a partner in Griffins. I identify those nine companies below together with the date on which they first went into liquidation (although, again, in a number of cases the liquidator at the date of the notices of assignment was not the original liquidator):

I will refer to the 19 companies which have assigned their claims to TWPS as the “MTIC Companies”. The Assignor Liquidator Claims which the MTIC Companies assigned (or purported to assign) to TWPS were defined in each of the notices of assignment to include “any actions, claims and rights arising pursuant or relating to section 213 of the Insolvency Act 1986”. On 31 October 2022 Freedman J held that it was impossible for the liquidators of the MTIC Companies to assign any claims which they may have had under section 213 (“S.213”) of the Insolvency Act 1986 (“IA 1986”) because all of the companies went into liquidation before 1 October 2015: see [2022] EWHC 2742 (Ch) at [164] to [180]. The Claimants did not challenge that decision at the trial before me.

Mr Deuss

The Second Defendant, Mr John Deuss, was born in Amsterdam in 1942. In the 1970s he moved to Bermuda where he still lives. Since the 1960s he has operated in the oil sector, first as a trader of petroleum products before moving into oil and gas exploration. By the 1980s the Transworld Group, which consisted of over 70 companies and which he owned and controlled, was one of the largest privately held oil trading companies in the world. In the 1990s he became involved in commercial banking and acquired a controlling interest in the Bermuda Commercial Bank (“BCB”).

Between 1979 and 2010 (when it was originally dissolved) Mr Deuss was the ultimate beneficial owner of TWPS. The de jure directors of TWPS during the period with which this judgment is concerned were Ms Tineke Deuss, Mr Deuss’s sister, and Mr Charles Geerts, Mr Deuss’s cousin. Mr Deuss also owned and controlled a number of other Transworld companies which are relevant to these proceedings. In particular, he owned and controlled Transworld Oil Computer Centrum B.V. (“TWOCC”), which was incorporated in the Netherlands and based in Berg en Dal near Nijmegen; Transworld Information and Communications Technology Solutions Pty (“TWICTS”), which was incorporated and based in Bangalore, India; and First Curaçao Ltd which later became Transworld Payment Solutions Ltd (Bermuda) (“TWPS Bermuda”).

FCIB

On 25 June 1973 the First Defendant, First Curaçao International Bank N.V. (“FCIB”), was incorporated in Curaçao in what was then the Netherlands Antilles. Mr Deuss owned 100% of FCIB’s share capital from its incorporation and he became the Managing Director, President and CEO of FCIB. In 2003 he gave up the role of Managing Director and became a member of the Supervisory Board or a “Supervisory Director”. He remained the CEO and President of FCIB until 2006 when those roles were abolished. He remained a Supervisory Director until the events which I now describe.

On 9 October 2006 the Court of First Instance of Curaçao (the “Court of First Instance” or “CFI”) placed FCIB into emergency measures under Article 28 of the National Ordinance on the Supervision of Banking and Credit Institutions 1994 (“Emergency Measures” and “Article 28”). By letters dated 10 October 2006 Dr Tromp, who was the President of the Bank van de Nederlandse Antillen (the Central Bank of the Netherlands Antilles) (the “Central Bank”), wrote to Mr Nasr Farag, Mrs Martha Neuman-Rovira and Mr Christian Peterson appointing them to be “proxy holders” to exercise the powers of the Central Bank. In 2014 and 2015 Mr Peterson acted for FCIB in the settlement negotiations below.

Representation

Mr Christopher Parker KC, Mr Caley Wright and Mr James Woolrich appeared on behalf of the Claimants at the trial instructed by Gowling WLG (UK) LLP (“Gowling”). Mr Andrew Scott KC and Mr Barnaby Lowe appeared on behalf of FCIB instructed by Jones Day and Mr Bankim Thanki KC, Mr Saul Lemer and Mr Paul Fradley appeared on behalf of Mr Deuss instructed by Quinn Emmanuel Urquhart & Sullivan UK LLP (“QE”). Where I refer to the oral or written submissions made by individual counsel, I do so by name. I recognise, however, that those submissions were the product of a team effort by both counsel and solicitors and I express my thanks to all of them for the quality of their submissions both oral and written. I am also pleased to say that I had the benefit of hearing from junior counsel on each team.

The Claims

The VAT Claims

Each of the MTIC Companies went into liquidation at a time when His Majesty’s Revenue and Customs (“HMRC”) claimed substantial sums from them in respect of unpaid VAT (and many of them were wound up on the petition of HMRC). The Claimants allege that those liabilities arose because the MTIC Companies participated in “carousel” or “missing trader intra-community” fraud (“MTIC fraud”). I will have more to say about the indicia of MTIC fraud and how the liability of each of the MTIC Companies for VAT arose. But for present purposes it is sufficient to note that in Schedule 8 (Footnote: ¹) to their closing submissions the Claimants’ submit that the MTIC Companies were liable to HMRC for the following sums (including interest):

HMRC’s claims against the MTIC Companies totalled well in excess of £200 million and I will refer to each of the 19 claims above as a “VAT Claim” and all 19 claims together as the “VAT Claims”. Mr Hunt and the other liquidators of the MTIC Companies have admitted all of these claims to proof and it was the Claimants’ case that these were genuine debts due to HMRC which they were entitled to admit to proof and that the Court should accept their decision to that effect. It was also their case that the MTIC Companies had incurred these debts as a consequence of the breaches of fiduciary duty which their individual directors had committed by dishonestly participating in MTIC fraud.

The Defendants did not dispute the involvement of the MTIC Companies in MTIC fraud. They also accepted that the MTIC Companies had used FCIB bank accounts to facilitate their activities (or at least some of them). But they did not admit the extent of the VAT Claims or that FCIB, TWPS or Mr Deuss had any involvement in the individual transactions or payments which gave rise to the VAT Claims. Moreover, the Defendants denied that Mr Hunt and his fellow liquidators should have admitted many of the VAT Claims to proof or that they were losses which were recoverable as a matter of law.

The Direct Claims

Because of the decision of Freedman J that the Assignor Liquidator Claims were not capable of assignment to TWPS, the Claimants were unable to pursue any claims against FCIB to recover any contribution to the debts due to HMRC under S.213. It follows that the only claims which were validly assigned to TWPS were the Assignor Company Claims. These were claims by each MTIC Company against FCIB for dishonest assistance in the breach of fiduciary duty which the directors of each MTIC Company had committed by causing that company to commit MTIC fraud and incur liability for VAT to HMRC.

It was the Claimants’ case that FCIB assisted the directors of the MTIC Companies to commit MTIC fraud by providing FCIB’s electronic banking services to them and by using TWPS to market those services. The only individual against whom the Claimants alleged dishonesty was Mr Deuss himself in his capacity as an officer of FCIB until 2006 and as a Supervisory Director thereafter until 9 October 2006 when FCIB went into Emergency Measures. The Claimants had brought a similar claim against Mr Deuss himself but by a notice of discontinuance dated 13 September 2024 the Claimants discontinued this claim.

I will refer to the claims by the MTIC Companies against FCIB as the “Direct Claims” because they were claims brought directly by the MTIC Companies against FCIB. All of the MTIC Companies traded in the UK telecommunications and computer sector (the “T&C sector”) and the relevant period of trading upon which the Claimants relied began in late 2003 and came to an end when FCIB went into Emergency Measures. There was no dispute that Mr Deuss was either the Managing Director or a Supervisory Director of FCIB throughout that period and continued to hold his executive roles for at least some of that period.

Liability. Both Defendants denied that they were liable for dishonest assistance to the MTIC Companies. Mr Deuss’s primary defence was that he was not dishonest and this was the principal issue at trial. It was also his case that the Claimants had failed to prove the individual chain or chains of transactions through which each MTIC Company had incurred liability to HMRC or that those transactions were routed through an FCIB bank account. They also took a number of specific points in relation to individual MTIC Companies. Mr Deuss submitted that the Claimants had failed to prove that FCIB assisted or that they had suffered any loss as a consequence. FCIB adopted Mr Deuss’s case.

Limitation. FCIB also advanced a defence of limitation. Its case was that the cause of action of each MTIC Company had accrued by 9 October 2006 and that this was more than six years before the issue of the Claim Form on 21 September 2020. The Claimants made no formal admission that this analysis was correct although they admitted in their Trial Skeleton dated 7 March 2025 that the lex causae was English law and that the limitation period was six years: see paragraph 452. (Footnote: ³) However, they did not dispute that all of the causes of action upon which the MTIC Companies relied had accrued by 9 October 2006 and, in case there is any doubt, I hold that they had all accrued by that date.

However, the Claimants argued that the limitation period ceased to run and became suspended when FCIB went into Emergency Measures under a principle of insolvency law to be derived from the decision of the Court of Appeal in Re General Rolling Stock Co (1871-2) LR 7 Ch App 646 (“General Rolling Stock”). The Defendants disputed the existence of such a principle or that it applies either to a foreign company or to Emergency Measures in Curaçao. I will refer to this as the “General Rolling Stock point” and to any principle to be derived from the case itself as the “General Rolling Stock principle”.

The Indirect Claims

The Claimants alleged that TWPS dishonestly assisted the MTIC Directors to commit MTIC fraud by soliciting customers in the T&C sector, assuming the role of performing KYC checks for customers when they applied for an account (which the Claimants described as “onboarding”) and also assuming responsibility for FCIB’s AML obligation to monitor the unusual activity of customers. The individuals against whom the Claimants alleged dishonesty were Mr Deuss himself and Mr Daniel Maurice-Vallerey (“Mr Vallerey”), who is alleged to have been the President of TWPS. The Claimants also alleged that Mr Deuss was at all material times a de facto or shadow director of TWPS and that he was its directing mind and will. This allegation was not made against Mr Vallerey and I was not taken to any documents to prove the scope of Mr Vallerey’s authority to act for TWPS although Mr Deuss accepted that he was one of TWPS’s executives in his witness statement dated 28 August 2024 (“Deuss 1”).

Mr Hunt and the liquidators of the MTIC Companies also asserted claims under S.213 against TWPS. Their claims were pleaded in the alternative to the accessory liability claim and based on the same facts. The Claimants asserted that the MTIC Companies were carrying on business with the intent to defraud creditors or for a fraudulent purpose and that TWPS was a party to them doing so knowing that they were engaged in MTIC fraud or turning a blind eye to them doing so.

The Claimants alleged that TWPS was liable to pay equitable compensation measured by the amount of the MTIC Companies’ liabilities to HMRC for the VAT Claims as a result of dishonestly assisting the directors of the MTIC Companies to commit MTIC fraud. They also claimed a contribution to those liabilities under S.213 amounting to 100% of the VAT Claims. They alleged that TWPS was liable for the full amount of the VAT Claims and Mr Hunt gave evidence in his trial witness statement dated 28 August 2024 (“Hunt 6”) that the MTIC Companies had submitted proofs of debt in relation to the VAT Claims and, although he had not formally adjudicated on these proofs of debt, it was unnecessary for him to do so until he was in a position to declare a dividend.

Liability. The Defendants advanced the same defences to the Indirect Claims in relation to dishonesty, causation and loss as they did in answer to the Direct Claims. They also denied that Mr Deuss was a de facto or shadow director of TWPS or that TWPS was knowingly a party to the MTIC Companies carrying on business with intent to defraud HMRC or for a fraudulent purpose. Finally, they denied that TWPS was or would have been liable to the MTIC Companies because the VAT Claims gave rise to a notional rather than real liability and contended that it was open to them to take the limitation defences (below) which Mr Hunt should have taken or, alternatively, that his failure to do so broke the chain of causation.

Limitation. As stated, it was the Claimants’ pleaded case that since Mr Hunt had taken no limitation defence in answer to the VAT Claims in his capacity as the liquidator of TWPS, it was not open to the Defendants to raise a limitation defence to the VAT Claims themselves. I will call this issue the “Standing Issue” because the Claimants framed it by reference to the question whether the Defendants had any standing to take this point given that they were not creditors of TWPS. But if they were permitted to take this point, the Defendants also took a limitation defence to the Indirect Claims.

It was common ground that on 22 September 2014 TWPS went into liquidation and that time ceased to run in respect of claims against it for the purposes of the Limitation Act 1980 (the “LA 1980”) on that date. It was also common ground that the cause of action of any MTIC Company which accrued on or before 22 September 2008 was now barred by limitation unless the Claimants were able to rely on section 32 (“S.32”) of the LA 1980. I will use the term the “Cut Off Date” to describe or define this date. The Defendants accepted that the Claimants were entitled to rely on S.32 in relation to those MTIC Companies which had not gone into an insolvency process or appointed an insolvency practitioner before that date or which had no independent directors. However, they asserted that even after making that concession VAT Claims to the value of approximately £189 million are barred by limitation.

The principal issue between the parties, therefore, was whether the liquidators of the MTIC Companies which went into liquidation before the Cut Off Date or the uninvolved directors of those MTIC Companies which had not gone into liquidation before the Cut Off Date (the “Uninvolved Directors”) could with reasonable diligence have discovered that TWPS had dishonestly assisted the directors of the MTIC Companies to commit MTIC fraud and also that it had knowingly participated in that fraud. I will call this the “S.32 Issue”. The Defendants also took a related point, namely, that TWPS had no liability to the MTIC Companies under S.213 because they failed to issue an Insolvency Application Notice under S.213(2) and it is now far too late to do so. I will call this the “Application Issue”.

The TWPS Claims

Breach of fiduciary duty. It was the Claimants’ case that Mr Deuss committed breaches of the fiduciary duties which he owed to TWPS as a de facto or shadow director of TWPS by having TWPS perform the relevant conduct which enabled TWPS to facilitate the assistance which FCIB gave to the directors of the MTIC Companies (i.e. soliciting and onboarding customers and monitoring their activities). The Claimants did not allege that Mr Vallerey committed any breaches of his duties as an executive or employee of TWPS or that he was personally liable to TWPS for exposing it to liability to the MTIC Companies and no claim was brought against him personally.

It was the Claimants’ case that Mr Deuss was liable to pay equitable compensation to TWPS for his breaches of duty measured in the amount of the MTIC Companies’ liability to HMRC for the VAT Claims. The claim against Mr Deuss depended, therefore, on the Court reaching the conclusion that TWPS either is or would have been liable to the MTIC Companies for the VAT Claims (or at least some of them).

S.213. Mr Hunt also claimed a contribution against Mr Deuss under S.213 in his capacity as the liquidator of TWPS and it was his case that the Court should declare that Mr Deuss was liable to make a contribution to the assets of TWPS of 100% of the amount which was required to meet TWPS’s liability to the MTIC Companies. He advanced this claim on a similar but not identical basis to the S.213 claim made by the liquidators of the MTIC Companies against TWPS, namely, that the business of TWPS was carried on for a fraudulent purpose and that he was knowingly a party to this.

Contribution. At the beginning of the trial TWPS also asserted a separate claim for contribution against Mr Deuss under section 1 of the Civil Liability (Contribution) Act 1978 (the “CA 1978”). By notice dated 9 April 2025 the Claimants discontinued this claim (subject to the question of costs). It follows that it was unnecessary for the Court to decide this claim.

Mr Hunt also claimed a contribution against FCIB under S.213 in his capacity as the liquidator of TWPS for 100% of the amount which was required to meet TWPS’s liability to the MTIC Companies on the basis that TWPS was carrying on business for a fraudulent purpose and that FCIB was a knowing participant. At the beginning of the trial TWPS also discontinued its claim for a contribution under section 1 of the CA 1978 against FCIB (subject to the question of costs).

I will refer to the claims brought by TWPS and Mr Hunt against Mr Deuss and FCIB as the “TWPS Claims” because they were brought by TWPS against Mr Deuss and FCIB and, if successful, their practical effect would have been to pass on the liability of TWPS to the MTIC Companies – and the MTIC Companies to HMRC – to FCIB and Mr Deuss in contrast to the Direct Claims which the MTIC Companies advanced against FCIB directly. The analogy which came to mind was with “dog-leg” claims brought by the trustees or beneficiaries of a trust against the directors of a company owned by the trust. The analogy is not exact in legal terms but, when viewed diagrammatically, they look similar.

Summary

There was a symmetry between the claims against both Defendants. The Claimants advanced one group of equitable claims against each of them (claims for dishonest assistance against FCIB and for breach of fiduciary duty against Mr Deuss himself) and one claim for a contribution against each of them under S.213. The precise basis for each of the claims (or group of claims) varied. But the primary facts upon which both the Direct and Indirect Claims were based were essentially the same. The Defendants also raised the same or similar defences to each claim (or group of claims) in relation to liability, causation, loss and limitation although there were important differences between FCIB’s limitation defence to the Direct Claims and the Defendants’ limitation defence to the Indirect Claims which I will have to consider.

Settlement

In 2015 Mr Hunt, Mr Bramston and Ms Hall together with a number of other insolvency practitioners entered into a series of settlement agreements with FCIB one purpose of which was to recover funds which were frozen in FCIB accounts. FCIB’s case was that the purpose of the negotiations and the ultimate settlements was to settle all potential claims, to facilitate a wind down of FCIB’s business and to safeguard the interests of its legitimate creditors. It was also FCIB’s case that the conduct of the negotiations which preceded those settlements or the settlements themselves give rise to a complete defence to the Direct, Indirect and TWPS Claims.

The IPSAs

Once FCIB had gone into Emergency Measures, the Dutch authorities commenced a criminal investigation which resulted in criminal proceedings. In the meantime, FCIB was unwilling to release account balances to account holders. In 2008, however, a protocol was agreed to enable FCIB to release or pay out 75% of account balances (the “Protocol”). The Claimants described the Protocol as follows in their Narrative Chronology: (Footnote: ⁴)

“455.

Following a meeting between (among others) Mr Hunt, representatives from HMRC and Mr Broekhuijsen (a Dutch Public Prosecutor) in late Spring 2008, a ‘Protocol’ was agreed for officeholders appointed under the Insolvency Act 1986 to seek approval from HMRC for the release of funds from FCIB (the FCIB Protocol). The FCIB Protocol was designed to facilitate (but not actually mandate) the release of funds from FCIB to account holders subject to insolvency procedures in England and Wales (and to avoid the release of funds to those involved in orconnected to MTIC fraud).

456.

By letters dated 11 July 2008 and 20 October 2008, Mr Broekhuijsen confirmed that the Dutch Prosecution Service would not commence criminal investigations if funds were released to insolvency practitioners under the FCIB Protocol.

457.

In summer 2008, Mr Hunt as liquidator of RS Sales Agency Limited (in liquidation) brought proceedings in Curaçao against FCIB and the Central Bank regarding the former’s refusal to release monies to RS Sales, notwithstanding the FCIB Protocol. FCIB were apparently concerned about the risk of prosecution by the DPS. Those proceedings were settled, and in December 2008, FCIB confirmed that it would release funds (75% of FCIB account balances) to any liquidator who had an entitlement to the monies held by FCIB and who satisfied the conditions under the FCIB Protocol. That was announced on the FCIB website ‘as of 1 January 2009’.”

In 2013 the criminal proceedings in the Netherlands came to an end. Mr Deuss’s evidence was that the criminal proceedings were compromised on appeal without any admission of the facts or any admission of guilt or wrongdoing although he had been found guilty of two charges and acquitted of three others at first instance. Once the criminal proceedings had been resolved, however, FCIB was unwilling to continue to make payments under the Protocol. The Claimants record as follows at NC468 and NC470:

In early 2014 representatives of FCIB and the Central Bank got in touch with Griffins and by letter dated 14 February 2014 Mr Andrew Fatherly, who was employed as a manager at Griffins, wrote to Mr Peter Sawyer of HMRC, informing him of this fact and that Griffins intended to meet them for a confidential discussion on possible settlement. Between February 2014 and February 2015 negotiations took place between Griffins and the proxy holders of FCIB together with their lawyers. I will have to consider those negotiations in detail but, for present purposes it is sufficient to note that they were successful and that on 6 February 2015 and 7 April 2015 Mr Hunt and a number of other insolvency practitioners entered into settlement agreements with FCIB.

I will refer to Mr Hunt and the other insolvency practitioners who entered into these agreements with FCIB as the “IPs” or the “IP Group”, each agreement as an “IPSA” and all eight agreements together as the “IPSAs”. I will have to consider the terms of the IPSAs in some detail. But for present purposes it is sufficient to state that in return for a lump sum and the payment of account balances each IP agreed to give a release in wide terms both to FCIB and a number of other parties. Mr Hunt entered into four IPSAs, Mr Bramston entered into two IPSAs (including one with Mr Hunt) and Ms Hall entered into three IPSAs.

Each IPSA expressly provided that the relevant IP entered into the agreement in his or her capacity as the liquidator of a number of companies identified in Exhibit A to that agreement. However, none of the MTIC Companies were identified in Exhibit A to any of the agreements apart from one, Star, which was included in Exhibit A to an IPSA dated 6 February 2015 which Mr Hunt entered into himself. However, the Claimants admit that by the date on which they entered the IPSAs, members of the IP Group had been appointed as liquidators of all of the MTIC Companies (apart from @tomic, Notebook and Comveen). Mr Hunt has since asserted that Star is not bound (or has ceased to be bound) by the IPSA to which it was expressed to be a party.

The Curaçao Judgment

By letter dated 5 February 2016 (the “Letter of Claim”) Blake Morgan LLP (“Blake Morgan”), who were acting on behalf of the Claimants wrote to FCIB, the Central Bank and Spigt Dutch Caribbean (“Spigt”), a law firm who represented FCIB, asserting claims of in excess of £180 million. The Letter of Claim enclosed a list of creditors including eleven of the MTIC Companies. On 9 March 2016 FCIB commenced two sets of proceedings in the CFI against a number of Defendants, who included Mr Hunt, Mr Bramston, Ms Hall, TWPS and the eleven MTIC Companies referred to in the list of creditors.

The Defendants challenged jurisdiction and their application is the subject of four judgments in the CFI, the Curaçao Court of Appeal and the Curaçao Supreme Court. That challenge failed and on 29 July 2024 Judge PE De Kort (the “Judge”) handed down judgment (the “Curaçao Judgment”) ruling as follows (and I quote from the agreed translation):

“The court: in both cases 5.1. rules that nothing is owed by FCIB to either TWPS or Hunt as liquidator of TWPS by virtue of the so-called TWPS claim, insofar as it is based on an unlawful act in respect of facilitating or assisting in the MTIC fraud, to the extent that this claim does not relate to the claim under section 213 Insolvency Act - in respect of which the court does not have jurisdiction.”

The Judge’s decision was based on the principle of Curaçao law known as rechtsverwerking which is usually translated as “forfeiture” or “forfeiture of rights” and I will use those terms interchangeably to refer to this principle. In substance, the Judge held that Mr Hunt and TWPS had forfeited the right to bring the “so-called TWPS claim” because of their conduct in the negotiations for the IPSAs. On 21 October 2024 Mr Hunt and TWPS filed a Statement of Appeal Grounds against the decision. At the time of the trial and of the preparation and handing down of this judgment, the appeal has yet to be determined.

Issue estoppel

The Defendants contended that the Curaçao Judgment gave rise to an issue estoppel binding on the English Court because the CFI is a court of competent jurisdiction and it had finally and conclusively determined on the merits that the Claimants had forfeited their rights to assert any of the claims in this action. The Claimants challenged these submissions on a number of grounds including and, in particular, that the judgment was not final or binding.

Forfeiture of rights

The Defendants also submitted that if the Claimants were not bound by an issue estoppel, then Curaçao law applied to determine whether the Claimants were barred from bringing any of the claims by their pre-contractual conduct under Article 12(1) of Regulation (EC) No 864/2007 dated 11 July 2007 on the law applicable to non-contractual obligations (the “Rome II Regulation”). They also submitted that the Court should determine on the merits that the Claimants have forfeited those claims. It is common ground that the Rome II Regulation applies to this issue. But the Claimants denied that Article 12 applied and submitted that Article 4 applied. They argued that the Court should apply English law and reject this defence.

The Defendants argued in the alternative that the conduct of TWPS and the Insolvency Practitioners during the negotiations and in entering into the IPSAs amounted to unlawful (group) conduct (onrechtmatige (groeps) daad) against FCIB for the purposes of Article 6:162 and 6:166 of the Curaçao Civil Code (the “CCC”) with the consequence that the Claimants were precluded from pursuing any of the claims against FCIB or, alternatively, that FCIB was entitled to claim damages. I will refer to this principle as “unlawful group conduct”.

Construction

The Defendants also argued in the alternative that as a matter of contractual interpretation the Claimants were bound by the IPSAs. There was no dispute that Mr Hunt was a party to a number of the IPSAs. The real issue between the parties was whether the effect of the IPSAs was to preclude Mr Hunt from bringing claims in his capacity as the liquidator of TWPS and of a number of the MTIC Companies and whether the list of companies set out in Exhibit A to each of the IPSAs to which he was a party or to which the other IPs were parties, was to be interpreted exhaustively.

Circuity of actions

The final defence which the Defendants raised was circuity of actions as between TWPS and the MTIC Companies and as between FCIB and the Claimants. They argued that TWPS had an equal and opposite claim against the MTIC Companies which would extinguish any liability for the VAT Claims and that FCIB would have an equal and opposite claim against TWPS. The Claimants disputed the application of the principle on the basis that there is no allegation that the directors of the MTIC Companies were party to TWPS’s dishonest conduct and that the Supreme Court had rejected this argument in Bilta (UK) Ltd v Nazir (No 2) [2015] UKSC 23, [2016] AC 1 (“Bilta (No 2)”).