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

The reason why I consider those last observations to be particularly significant is because I consider Mr Thompson to have been correct when he made the submission that, in the present case, FWA has taken an approach which is not reflective of the test described by Andrews LJ. FWA’s counsel say this at paragraph 21 of the skeleton argument:

“In making this application, FWA recognises the distinction which the authorities draw between:(1) a recalcitrant defendant who can pay but refuses to pay his debts until he is forced to do so; and, (2) a defendant who is so determined not to pay that he would take active steps to frustrate the recovery of sums due to his creditors by transferring or concealing assets or by some other form of unjustified dissipation.”

However, when submissions came to be made, both in writing and orally by Mr Lissack on FWA’s behalf, it became apparent that FWA was advancing its application on a lesser basis than that described by Andrews LJ. That lesser basis entailed, in essence, a complaint (supported by evidence said to justify that complaint) directed towards VietJet being shown to be refusing to pay yet being able to pay, rather than (as Andrews LJ made clear is required) VietJet being so determined not to pay that active steps have been taken by VietJet to frustrate the recovery of the judgment sums by FWA.

In support of the application, there is a lengthy affidavit from Mr Baker, FWA’s solicitor, in which, over the course of some 152 paragraphs, much is said about VietJet’s conduct. On analysis, however, I agree with Mr Thompson when he submits that the only truly relevant material which falls to be considered is the material set out in just three and a half pages of that affidavit, namely paragraphs 117 to 128. This is not to say that I ignore the other material sought to be relied upon; I do not. However, ultimately, I agree with Mr Thompson that the application really centres on the material highlighted in those few paragraphs. I will come on to address what is there stated, but, first, I should say something about the other matters on which FWA relies.

Those matters entail essentially three aspects: first, what Mr Lissack described as “VietJet’s prior conduct”; secondly, certain (as described) “misleading submissions” made on VietJet’s behalf concerning alleged attempts to raise monies to satisfy the judgment debts; and, thirdly, the matters covered by those few paragraphs in Mr Baker’s affidavit to which I have referred, namely certain recent financial transactions entered into by VietJet (a dividend distribution, entry into a series of new purchase orders for various aircraft, and transfer of certain assets to VietJet subsidiaries).

In the skeleton argument submitted by FWA, matters were dealt with in the order I have just described - in other words, starting with VietJet’s prior conduct. However, in his oral submissions, Mr Lissack dealt with matters in reverse. This was, in my view, a recognition (and a correct recognition) as to the relative importance of the three matters relied upon. I have already indicated that it is the third matter which seems to me to have the greatest significance, albeit I understand why Mr Lissack and FWA also invoke the other two aspects.