CA-2024-001802 - [2025] EWCA Civ 1389

This is an appeal against the dismissal of a claim by Lakatamia Shipping Co Ltd for damages as a result of the dissipation of funds which were meant to be frozen by a worldwide freezing order but were transferred to a company called UP Shipping Corporation which was owned and controlled by Mr Nobu Su’s mother, Madam Su. Lakatamia brought claims against the defendants for unlawful means conspiracy and inducement of a breach of rights existing under a judgment (the so-called Marex tort, derived from the decision in Marex Financial Ltd v Sevilleja Garcia [2017] EWHC 918 (Comm) [2017] 4 WLR 105). These claims were dismissed by Mr Simon Colton KC, sitting as a Deputy High Court judge, after a trial in which the first defendant (Mr Su) participated remotely, but in which the second and third defendants (Mr Chang Tai-Chou and Maître Arnaud Zabaldano) took no part.

The transfer of funds to UP Shipping was effected by Maître Zabaldano on the instructions of Mr Chang, who was in turn instructed by Mr Su.

The Deputy Judge dismissed the claim against Mr Chang because he was not satisfied that Mr Chang knew either that Mr Su was bound by the freezing order or that Mr Su owed the judgment debt at the time when he gave instructions to Maître Zabaldano which put the funds in question beyond the reach of the freezing order. Lakatamia requires permission to challenge these factual conclusions, which it says are perverse. I would grant such permission.

As to Maître Zabaldano, the Deputy Judge’s essential reason for dismissing the conspiracy claim was that Maître Zabaldano, a Monegasque lawyer outside the territorial jurisdiction of the English court, had a defence by reason of what is known as the ‘Babanaft proviso’ (Babanaft International Co SA v Bassatne [1990] Ch 13). His essential reason for dismissing the Marex claim against Maître Zabaldano was that Maître Zabaldano honestly believed that he was entitled and obliged to transfer the funds in question beyond the reach of the freezing order, as a result of which either the mental element of the tort was not proved or Maître Zabaldano had a defence of justification.

That left the conspiracy claim against Mr Su, who had directed Mr Chang to cause Maître Zabaldano to transfer the funds beyond the reach of the freezing order. However the Deputy Judge dismissed that claim on the basis that he had dismissed the claims against Mr Chang and Maitre Zabaldano, with the consequence that Mr Su could not be liable in conspiracy on his own.

Lakatamia challenges these conclusions.

I have decided that the Deputy Judge’s factual conclusions concerning Mr Chang’s knowledge are plainly wrong and that his holding that the Bananaft proviso afforded a defence to Maître Zabaldano is contrary to binding Supreme Court authority. That means that all three defendants are liable in unlawful means conspiracy and the appeal must be allowed.

In these circumstances it will be unnecessary to consider at any length what the Deputy Judge said about the Marex tort, but I should not be taken as endorsing some of his conclusions, which must remain open in this court for decision in a future case.