CR-2025-001156 - [2025] EWHC 2129 (Ch)

Although there were a number of witnesses, it is fair to say that the cross-examination was targeted and generally brief. Again, I am grateful to the advocates for their focused approach. I now set out my brief observations on those witnesses.

Mr Duncan Reynolds is MOL’s manager of strategy and corporate finance and BMK’s MD for oil and gas. He was an impressive witness whose explanation of the business plan underlying the Plan (BP) showed considerable insight into, and knowledge of, the oil production industry.

Mr Neil Mitchell is a director of MOL. He was a straightforward witness. As he fairly accepted, he had limited knowledge of the detail of, or rationale for, the Plan or the BP, for which purpose, he relied on the advice of others, not least Mr Reynolds.

Mr Njoo Kok Kiong (Mr Njoo) is BMK’s Group CEO. He was a confident but fair witness. His oral testimony revealed certain limited matters which, although conveyed effectively, ought properly to have featured in his written evidence.

Mr Stephen Hope is Managing Member of Outrider Management LLC, Outrider’s Managing Partner. He was a poor and at times evasive witness, including his detachment from Outrider’s own case on the RA and, relatedly, Outrider’s own proposal for acquiring MOSA’s shares and financing the development of the Oilfield.

Mr Andrew Charters is a restructuring partner at Grant Thornton UK LLP. He is an experienced insolvency professional who conveyed in his evidence his opinion on the RA in a fair and measured way. I am satisfied that he understood his expert duties.

Mr Lakshan Saldin is a technical director for oil and gas at Hanscomb Intercontinental Ltd. He was cross-examined briefly, principally about a working capital analysis prepared for Outrider and LVIL in connection with the Oilfield, as well as his own views on the risks and adequacy of information in support of the BP. He too was a fair and measured witness who understood his duties.

Mr Iqbal Rajahbalee is an experienced Mauritian barrister. At times, he ex temporised about matters said to have been “in his mind” but which did not feature in his report. Outrider emphasised the assistance he had received in preparing his report, questioning whether this was his own. However, Mr Rajahbalee satisfactorily addressed the position in oral evidence. The criticism of his approach to the factual assumptions underlying parts of his evidence was also somewhat wide of the mark.

Mr Yudish Lutchmenarraido too is an experienced Mauritian barrister. Although he clearly wished to assist the Court on Mauritian law, he seemed to struggle to understand his role as an expert witness, his legal opinion sometimes becoming entangled with the factual analysis, making it difficult for the Court properly to evaluate what was his independent expert legal evidence as opposed to his own factual assessment.

The Court was assisted on relevant issues of Malagasy law by the written evidence of Maître Edouard Tricaud (instructed by MOL) and Mr Lalaina Chuk Hen Shun (instructed by Outrider) in the form of their respective reports and the joint statement. In light of the significant common ground, the parties had agreed at the pre-trial review that these aspects could be addressed at the Sanction Hearing by way submission and that their oral evidence was not required.

Although the Sanction Hearing was conducted courteously and efficiently, it is fair to say that there is quite some acrimony between the parties. MOL says that Outrider is acting as a ‘ransom creditor’, seeking to extract for itself a ‘ransom’ payment from BMK at the risk of causing MOL to enter liquidation. Outrider, in turn, says that the Plan entails no more than a wiping clean of both MOL’s and MOSA’s debt to Outrider, using the Part 26A mechanism to try and avoid both companies having to restructure their debts in their home jurisdictions through a formal insolvency process.

I now explain in a little more detail some of the relevant background leading to the current position of rancour.