CL-2022-000467 - [2025] EWHC 1920 (Comm)

This brings me to the last aspect of the suggested recent financial transactions justifying the grant of freezing order relief. This is the aspect relating to new purchase orders which VietJet has made since 15 May 2025 in respect of 20 Airbus A330-900s worth some US$7.4 billion, 100 Airbus A321neos worth some US$9.4 billion, and 40 Rolls-Royce Trent 7000 engines.

Again, there is no dispute that these purchase orders have been entered into. Mr Baker’s evidence in support of the application, based on information provided to him by FWA’s aviation counsel, is that industry practice is for some 1% or so of the total purchase price to be paid upon the signing of any memorandum of understanding, and that anywhere between 5% and 10% of the total purchase price will be paid upon entering into a formal contract.

Mr Lissack notes that VietJet has failed to disclose the relevant agreements and it is not certain, therefore, how they ought to be characterised, but he observes that Mr Boylan does not take issue with what Mr Baker has to say about industry practice. Mr Boylan, in fact, says this at paragraph 21:

“With respect to the order of A330-900s, this followed on from a previous order placed with Airbus in July 2024 for 20 A330-900s. The order is aimed at enabling VietJet to increase flights on high capacity routes and introduce long haul services to Europe. It is important to note that this is a long-term order. The aircraft will not be delivered until 2030-2032 and VietJet will not be required to make any PDPs in respect of these aircraft to Airbus until 2027 at the earliest (by which time VietJet expects to have paid the judgment debts in full). While it is true that there is a signing fee associated with this order, it is de minimis in the context of the Maximum Sum (less than 3%).”

He, then, says this at paragraph 22:

“The order placed with Rolls Royce for 40 Trent 7000 engines is linked to the A330-900 order as the engines are to be installed on those aircraft. These are also scheduled for delivery from 2030 onwards. VietJet does not have any payment obligations to Rolls Royce until at least 2030 (when the first A330-900s are due to be delivered).”

He adds at paragraph 23:

“With respect to the order of A321neos, these aircraft will enable VietJet to replace its existing narrow-body fleet with more modern and efficient aircraft, boost capacity and increase short-haul coverage. Again, this is a long-term order, with the aircraft not due to be delivered until 2030-2032 and VietJet will not be required to make any PDPs to Airbus until 2027 at the earliest. The signing fee for this order is also de minimis (less than 3% of the Maximum Sum).”

In fact, that last reference to less than 3% of the maximum sum Mr Thompson at the start of the hearing sought to correct, explaining that an error had been made and that the better reference should be less than 3.5%.

Mr Boylan goes on at paragraph 24 to say this:

“VietJet did not decide to place orders for 120 new Airbus aircraft as a reaction to the judgment of Mr Justice Picken dated 17 April 2025 (less than a month before the A330-900 order and two months before the A321neo order). Aircraft orders, particularly orders of this size, take many months to plan, negotiate and arrange. Moreover, by investing in modern and efficient aircraft as part of a sustainable fleet replacement and growth plan, VietJet is aiming significantly to grow its revenues.”

This seems to me to represent a complete answer to the submissions made by Mr Lissack on behalf of FWA in this context. As Mr Boylan explains, the decision to enter into these purchase orders was part of VietJet’s ordinary business activity and that ordinary business activity inevitably, as I see it, includes making decisions to purchase aircraft. There is nothing here to support a conclusion that the decisions to enter into the purchase orders involve a reaction to the quantum judgment. On the contrary, as Mr Boylan explains, orders such as these take many months to plan, negotiate and arrange. Therefore, the proximity of the purchase orders to the quantum judgment demonstrates that it cannot have been the quantum judgment that provoked VietJet’s entry into those orders. They must, indeed, have been orders that were being worked upon before the quantum judgment was issued.

There is also this further curiosity. What Mr Boylan is describing, unsurprisingly, by reference to these purchase orders, is the acquisition by VietJet of assets rather than the disposal of assets. It would be different, putting the matter simply, if these were aircraft that VietJet already had and were giving away, but what the purchase orders represent is a decision by VietJet to acquire assets, albeit assets which they will not, in fact, receive for some substantial time. It is true that payments are involved when these purchase orders are entered into, but they are relatively modest payments and they are payments which are designed to achieve the acquisition of assets, namely the growth of VietJet’s business. In those circumstances, it is inconceivable that these purchase orders amount to dissipation - as opposed to the opposite.

Therefore, this likewise is not a matter which justifies an objective conclusion that here there is the risk of dissipation that there would need to be, were freezing order relief to be granted.

It follows, whether viewing these various aspects individually or cumulatively, that I am wholly unpersuaded that the risk of dissipation hurdle has been overcome, having regard in particular to the approach described by Andrews LJ in Les Ambassadeurs.