Lenkor Energy Trading DMCC v Puri 2021 EWCA Civ 770 - 21 May 2021
On 20 July 2014 and 7 August 2014 Mr Puri signed two cheques, each drawn on the account of IPC Dubai at a Dubai branch of Habib Bank, in favour of Lenkor Dubai. The face value of the cheques was AED 208,500,200 (about US$ 55 million). When Lenkor Dubai attempted to present the cheques, there were insufficient funds in the accounts to meet them. They were not, therefore, honoured. By virtue of Article 599/2 of the Dubai Commercial Transactions Law a cheque may not be issued unless the drawer has, at the time of drawing the cheque, sufficient funds to meet it. Further, by the same law, a person who draws the cheque is deemed to be personally liable for the amount of the cheque. Following dishonour of the cheques, Lenkor Dubai brought proceedings against Mr Puri in Dubai. Those proceedings resulted in a judgment against him personally in Dubai in the sum of AED 123,272,048 plus interest at 9 per cent. Lenkor now seeks to enforce that judgment against him in England.
Mr Puri resists the application on the ground that to enforce the Dubai judgment would be contrary to public policy. His reason for saying so is that the underlying transaction, which was the context in which he signed the cheque, was tainted by illegality. That argument failed both before Master Davidson and before Murray J. The judge's judgment is at  EWHC 1432 (QB),  1 Lloyd's Rep 47.
It is, I think, common ground that the legal framework is encapsulated in Rules 42 and 51 as set out in Dicey, Morris & Collins on The Conflict of Laws (15th ed). Rule 42 is the basic rule, namely that a final and conclusive foreign judgment for a debt or definite sum of money given by a court of competent jurisdiction may be enforced by a claim in England, unless it is impeachable on grounds set out in later Rules. Rule 51 is: "A foreign judgment is impeachable on the ground that the enforcement or, as the case may be, recognition, would be contrary to public policy."
It is that rule on which Mr Puri relies. In order to explain his reliance, it is necessary to explain the factual background. I do so adopting the very clear narrative of the judgment below.
The dispute between Lenkor and the Buyer went to arbitration. We have been provided with a redacted copy of the award which preserves the confidentiality of the Buyer's identity. The arbitrator (Mr Steven Berry QC) considered the buyer's defence to Lenkor's claim for the contract price, applying the principles laid down by the Supreme Court in Patel v Mirza  UKSC 42,  AC 467. He was satisfied that Lenkor had entered into the Tripartite Agreement with the intention of committing illegal acts; and committed them in the course of performing the contract. He then discussed the various policy considerations both for and against enforcement of the contract. He came to the conclusion that it would be proportionate to deny a claim against the Buyer in contract which contained a profit element; but that it would be disproportionate to deny a claim to reverse unjust enrichment. Accordingly, he held that Lenkor Hong Kong had a valid claim for the balance of the value of the two cargoes delivered, after deduction of the amounts that the Buyer had paid in respect of the two cargoes to IPC Dubai in US Dollars and to IPC Pakistan in Pakistan Rupees. The balance due from the Buyer to Lenkor Hong Kong was therefore US$19,101,284.44.
The arbitrator went on to consider Lenkor's claims against IPC Dubai for the amounts that the latter had received on account of the cargos. In essence he held that IPC Dubai was liable to account to Lenkor for the amounts that had been paid to it or on its behalf. He further held that IPC Dubai had forfeited any right to commission because of its knowledge of Lenkor's illegal conduct. IPC Dubai was therefore liable to repay to Lenkor the entirety of the sums it had received. The basis of liability was either a contractual liability under the agency agreement; or was itself based on unjust enrichment. He did not find that the agency agreement between IPC Dubai and Lenkor Hong Kong was unenforceable for illegality.
In the course of his consideration of those claims, he also discussed the status of the guarantee cheques. He held that Lenkor was not obliged to return those cheques, but that any amount recovered on the cheques by Lenkor Dubai would be held for the benefit of Lenkor "and would, as between Lenkor and IPC Dubai, be receipt by it for the account of Lenkor". Accordingly, any sums recovered by reason of any liability on the cheques or any judgment on the cheques were to be credited against the liability of IPC Dubai as awarded in the arbitration.