Triple Point Technology, Inc. v PTT Public Company Ltd, Court of Appeal - Technology and Construction Court, June 07, 2018,  EWHC 1398 (TCC)
|Resolution Date:||June 07, 2018|
|Issuing Organization:||Technology and Construction Court|
|Actores:||Triple Point Technology, Inc. v PTT Public Company Ltd|
Case No. HT-2015-000056
Neutral Citation Number:  EWHC 1398 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 7 June 2018
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Andrew Stafford QC and Nathaniel Barber (instructed by Kobre & Kim (UK) LLP) for the Claimant/Applicant
James Howells QC and Nicholas Maciolek (instructed by Watson Farley & Williams LLP) for the Defendant/Respondent
Hearing dates: 17 and 23 May 2018
Draft provided to parties: 30 May 2018
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JUDGMENTMr Justice Fraser:
The Claimant and Applicant, Triple Point Technology, Inc. (``Triple Point'') is a company incorporated in the State of Delaware in the USA. Triple Point's business includes the design, development and implementation of software for use in commodities trading, based on its proprietary platforms (Commodity XL, or ``CXL''; and Softmar Vessel Chartering and Vessel Operations, or ``VO''). The Defendant, PTT Public Company Limited (``PTT''), is a public company incorporated in Thailand which undertakes such commodities trading. These two companies found themselves in dispute, the outline of which I provide below.
This judgment is in relation to an application by Triple Point for an injunction restraining execution of a judgment that PTT attempted to enforce in the State of Connecticut in the United States (``the US'') in May 2018. A stay of execution had, prior to that date, already been ordered by the Court of Appeal in an order of Jackson LJ dated 22 February 2018. There is no dispute between the parties that the steps taken in respect of enforcement in Connecticut (by the US Marshal) should not have been taken, because the certified judgment obtained from the court in London should not have been obtained. However, there is a dispute about the terms of the order that should be granted on the injunction. As a result of the submissions advanced by PTT relating to the scope of the stay, the chronology needs to be set out in more detail than might otherwise be the case. Essentially, PTT wishes to enforce an order in its favour in respect of interest and a payment on account of costs, although it accepts that the substantive judgment sum itself cannot be enforced as it is subject to the stay of execution ordered by Jackson LJ.
In around 2012, PTT set about procuring a commodities trading, risk management and vessel chartering and operations system (a ``CTRM'' system) to replace its existing system for commodities already traded by PTT, principally oil, refined products and petrochemicals. PTT sought tenders for the design, development, supply and implementation of a new system. PTT intended there to be two phases to the project: Phase I would replace the existing system and Phase II would involve the development of the new system to accommodate new types of trade. Triple Point bid for the contract to provide this system on 7 September 2012, and provided a Technical Specification. These were then subject to a set of clarifications dated 14 December 2012 (which were subsequently incorporated into the contract). A letter of intent (which was signed by Triple Point on 10 January 2013) and a series of Order Forms (three in total, referred to as Order Forms A, B and C) were also sent to PTT by Triple Point, and a Commodity Trading and Risk Management Contract (``the CTRM Contract'') was in due course signed by both parties, effective from 10 January 2013. By Article 27.1 the CTRM Contract was subject to English Law and, by Article 27.2, to the jurisdiction of the High Court of England and Wales.
On 16 February 2015 PTT served notice on Triple Point which required Triple Point to remedy certain breaches of contract. Those breaches were generally characterised as failing to provide adequately skilled and experienced staff to carry out the project, failing in various respects to provide the required system functionality, and failing to progress the project to complete within the contractual timescale. PTT then terminated the contract by notice dated 23 March 2015 relying on two contractual clauses entitling them to do so, alternatively at common law.
This characterisation was not accepted by Triple Point who sought to claim payment said to be due from PTT pursuant to certain invoices.
The parties' subsequent dispute, which concerned the terms of the contract, and whether there was one contract between them, or a series of contracts based on the three Order Forms, as well as the termination itself, was litigated in the Technology and Construction Court in London. There was a substantial claim by Triple Point, and counterclaim by PTT. The trial took place before Jefford J between 28 November and 15 December 2016. Closing submissions were heard on 31 January 2017.
Following that trial, the Judge produced a judgment dealing with the substantive issues, dated 23 August 2017. That is at  EWHC 2178 (TCC). It is not necessary to examine its terms in any depth, other than to summarise that PTT was successful in the proceedings. Specific issues and findings are reproduced at  in this judgment. In particular, the findings in the judgment in PTT's favour, including those in relation to liquidated and ascertained damages, meant that a sum of US$4.497 million became due to PTT from Triple Point.
The Judge, as is often the case in a complicated case such as this one, and in particular where (as was done by Jefford J) a judgment is handed down during vacation, fixed a date for the hearing of consequential matters, and also extended time for the losing party, Triple Point, to apply for permission to appeal. This hearing took place on a day convenient for the parties and was held on 4 October 2017.
At that hearing, Triple Point applied to Jefford J for permission to appeal on eight separate grounds, and also generally. That application was refused, both generally and on each of the specific grounds. Costs and interest were also the subject of submissions, and had elements of contention. Triple Point conceded that it should pay PTT its costs, although the basis of any detailed assessment was contentious, as well as some other outstanding matters, including the rate of interest, and what sum should be ordered as an interim payment on account of costs. At the end of this hearing, the Judge said (and I am quoting from the transcript):
``For the avoidance of doubt, I do not make any extension of time for the making of any application to the Court of Appeal, but I observe that time should be treated as running from today since all consequential matters were adjourned until today.''
That plainly meant, and in the absence of any further extension of time could only mean (and both parties correctly understood it to mean) that the 21 day period under CPR Part 52.12(2)(b) started to run from 4 October 2017. This is consistent with the notes at CPR 52.12.3 which refer to the decision of the Court of Appeal in Sayers v Clarke Walker  EWCA Civ 645 and the dicta of Brooke LJ at  to . This is that time starts to run from the decision of the lower court, and not from the date upon which the judgment or order of the court is sealed or perfected. Jefford J also reserved her decision on costs and interest, although as I have said Triple Point knew it would be ordered to pay further sums (and had conceded that it would be paying PTT's costs). The precise amount of the further sums was not however known, either to Triple Point or PTT.
Encouraged, if that is the correct word, by the commencement of the 21 day period, Triple Point applied to the Court of Appeal for both permission to appeal, and a stay of execution. The appellant's notice was dated 25 October 2017. That was supported by the 1st witness statement of Mr Shirtcliff of Triple Point's solicitors, lodged with, and referred to in, the appellant's notice. In that statement, he explained at paragraph 5:
``The learned trial judge found predominantly in favour of [PTT]. The exact sum to be paid is not known at the time of preparing this statement because the learned judge has not yet ruled on contended matters of interest and payment on account of costs. However, on [PTT's] case, the amount which the judge will order [Triple Point] to pay will likely be in excess of US$5,500,000 plus over £2,100,000 on account of costs. This should include the sum of US$692,000 already paid to [PTT] at the outset of the disputed project and held by it as performance security.''
Mr Shirtcliff also dealt with the difficulties of enforcing judgments against companies in Thailand, maintained that there would be difficulties in recovering payment back to Triple Point from PTT in Thailand were the appeal to be successful and a stay of execution not granted, and drew attention to the accounts available for PTT which showed it had in excess of US$6 billion in cash alone, and assets of US$66 billion.
The appellant's notice itself, at Section 5, in relation to the heading ``please set out the order (or part of the order) you wish to appeal against'' stated that Triple Point wished to appeal against the decision of Jefford J of 23 August 2017, and provided details. It also stated ``The order for judgment has not been finalised at the time of preparing this Appellant's Notice.'' At Section 9, in response to the standard question ``What are you asking the Appeal Court to do?'' the box was ticked which stated ``set aside the order which I am appealing.'' As at the date of lodging that appellant's notice, there was no order.
Finally, in Section 10 Triple Point made clear, by ticking the box that stated ``I apply for a stay of execution'' that such a stay was also being sought, as well as permission to appeal in relation to the substantive judgment. The support for the grant of a stay of...
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