BL-2025-001269 and BL-2024-001337 - [2025] EWHC 2706 (Ch)

As I have indicated, I will not recount the history of the matter which appears in my previous judgment. I will take up the story from there, dealing with matters shortly.

It would appear that my previous judgment and order, and the English law analysis contained in the judgment, have had no effect in South Carolina. Mr Protopapas has carried on his claims regardless, and the South Carolina courts have rejected all challenges to his appointment, status and authority. Those challenges have been mounted by other Cape-associated entities (the Altrad entities) and by De Beers. The considerable amount of activity has been described in the evidence that I have seen. It is unnecessary to set it all out here. It is sufficient to record that all challenges have, so far, been rebuffed, albeit only in interlocutory rulings (I understand that they can revisited at a final hearing), and Chief Justice Toal has recently confirmed the status and the legitimacy of the acts of Mr Protopapas as receiver.

In an attempt to forestall the third party proceedings against the Cape defendants in the third party proceedings, CIHL and other Cape-related entities entered into an agreement which released all claims relating to asbestos injuries inter se. That release, so far as effective, would remove the basis on which the receiver in South Carolina is suing Cape-related entities, qua CIHL, in the third party proceedings. They sought a declaration from the (English) court to the effect that that agreement was valid and effective to release those Cape-related entities, and Marcus Smith J ruled that it was - [2025] EWHC 2470 (Ch) . In an order dated 30th September 2025 he declared that the agreement was lawful, effective and binding in relation to (inter alia) the claims in the third party proceedings, and he granted an injunction restraining Mr Protopapas from taking further steps against those Cape-related entities in behalf of CIHL and requiring him to terminate those proceedings as against those entities. As I understand it, so far that judgment and order have had no visible effect on the activities of Mr Protopapas.

The progress of the third party proceedings has led to an imminent three day trial as between Mr Protopapas as receiver, purporting to act on behalf of CIHL, and De Beers, seeking a determination of liability on the contribution claim. It is set down for three days to start on Monday 20th October 2025. Apparently De Beers have been participating in the litigation (and mounting its challenges to jurisdiction) whilst reserving its rights to challenge jurisdiction and authority in a final ruling, which it is apparently entitled to do. However, having resisted so far, De Beers has recently decided that despite its case that Mr Protopapas is not entitled to be doing what he has done (which, as I understand it, is aligned with CIHL’s case as referred to in my first judgment), and that they are under no liability whatsoever, and particularly in the third party proceedings, they nonetheless wish to settle with him on a purely commercial view of the matter. As explained in the evidence, De Beers is concerned at the litigation risk in the current proceedings, the foreshadowing of further claims, the possible creation of a blueprint for future claims and reputational damage (asbestos being a very emotional subject-matter).

At a pre-trial conference in South Carolina on 6th October 2025 it was mentioned that De Beers and Mr Protopapas had reached an agreement in principle to settle the third party complaint on confidential terms. Having heard about this the next day (7th October) solicitors for CIHL wrote to De Beers saying that a settlement would amount to a breach of my order. Undertakings were sought which would have prevented the settlement. There then followed further correspondence in which an undertaking not to enter the settlement was sought, given in limited terms and then not extended.

That led to the two applications which are now before me. On 13th October De Beers issued an application seeking a variation of the injunctions in my order so that it could not be said that they stood in the way of a third party wishing to enter into a settlement with the receiver. A hearing of that application was arranged for Friday 17th October. On Wednesday 15th October CIHL applied for injunctive relief (in the absence of an undertaking), and that application was stood over to be heard with De Beers’ application. Mellor J restrained the settlement pending further order of the court and ordered that both applications be heard together. Thus the matters arrived before me.

The trial of the third party proceedings as between the receiver/CIHL and De Beers (as it would be described in South Carolina) remains due to start on Monday 20th October. Mr Oren, the sole director of CIHL, sought to cast doubt on whether that was really going to happen in the absence of a settlement, because he said there had been previous adjournments and there were procedural reasons for supposing that it was not likely that it could take place. However, Chief Justice Toal, before whom the trial will take place, has very recently issued a direction as follows:

“All parties in this matter are hereby notified that this Court has taken no action to continue or delay the trial in this matter which is scheduled to begin Monday, October 20, 2025.”

In the light of that and other observations made on procedural matters by De Beers I therefore assume that the trial is likely to happen unless the settlement is signed off before then. That generates an obvious urgency about this matter. I note, however, it was not said that the commencement of the trial would mean that the settlement was off. Nonetheless, it is my intention that this judgment should be delivered before the trial actually starts so that the parties know where they stand by then, taking into account the time difference between here and South Carolina.