Fundo Soberano De Angola & Ors v dos Santos & Ors [2018] EWHC 2199 (Comm) (16 August 2018)

The decision of the Commercial Court (Justice Popplewell) was rendered in the context of a dispute in relation to the sovereign fund of the Republic of Angola (“FSDEA”) and seven of its subsidiaries (“the Claimants”) to the Quantum Global Group, its owner Mr Bastos de Morais and the former Chairman of FSDEA, Mr Dos Santos (“the Defendants”).

The Commercial Court discharged a US$3 billion worldwide freezing order and proprietary injunction (“WFO”) granted against the Defendants in April 2018 in relation to allegations by the Claimants of dishonest conspiracy by the Defendents in the management of the FSDEA.

The Commercial Court held that the English Courts did not have jurisdiction over most of the underlying claims as England was not clearly and distinctly the most appropriate forum. The Court also held that several claims were subject to binding arbitration clauses provided in relevant contracts.  However, Mr Justice Popplewell did find that jurisdiction was established over a small rump of causes of action, namely, those claims related to unlawful means conspiracy, dishonest assistant and knowing receipt.

Mr Justice Popplewell further held that the Claimants breached their duty of full and frank disclosure and fair presentation in an ex parte hearing held in April.  The judgment referred to the requirements outlined in Ralph Gibson LJ in Brink’s Mat Ltd v Elcombe [1998] 1WLR 1350 and to the obligations of legal advisers and of their lay clients to provide a full and fair summary of the available evidence in the interest of the efficient administration of justice.  Eight serious and substantial breaches were noted, including the lack of fair presentation of the structure of the FSDEA and the level of fees charged.

Moreover, the Court held that the Claimants failed to establish by solid evidence the existence of a real risk of an unjustified dissipation of assets. The Court emphasised the fact that the purpose of freezing orders is not to provide a claimant with security nor to prevent a defendant from dealing with their assets in the normal course of business.

The Commercial Court decision is available here: http://www.bailii.org/ew/cases/EWHC/Comm/2018/2199.html