Ivanishvili, Bidzina and others v Credit Suisse Trust Ltd

• Jurisdiction: Singapore
• Judge: Patricia Bergin IJ
• Judgment Date: 02 November 2023
• Neutral Citation: [2023] SGHC(I) 19
• Court: International Commercial Court (Singapore)
• Docket Number: Suit No 4 of 2021 (Summons No 33 of 2023)
• Hearing Date: 02 November 2023
• Citation: [2023] SGHC(I) 19
• Year: 2023
• Plaintiff Counsel: Cavinder Bull SC, Tan Yuan Kheng, Kelly Tseng Ai Lin, Gerald Paul Seah Yong Sing and Liang Fang Ling Elisabeth (Drew & Napier LLC)
• Defendant Counsel: Lee Eng Beng SC and Disa Sim (Rajah & Tann Singapore LLP) (instructed), Kenneth Lim Tao Chung, Wong Pei Ting, Yeow Yuet Cheong (Allen & Gledhill LLP)
• Subject Matter: Civil Procedure,Stay of execution of judgment pending appeal
• Published date: 22 November 2023

Patricia Bergin IJ (delivering the oral judgment of the court):

This is an application brought by the defendant for a stay of the Court’s judgment delivered on 26 May 2023 in Ivanishvili, Bidzina and others v Credit Suisse Trust Limited [2023] SGHC(I) 9 (the “Merits Judgment”), and the Court’s judgment on 19 September 2023 in Ivanishvili, Bidzina and others v Credit Suisse Trust Limited [2023] SGHC(I) 14 (the “Quantum Judgment”). The defendant was ordered to pay a sum of US$742.73m plus interest. It was also ordered to pay the plaintiffs’ costs of S$7,298,893.43 plus interest.

The defendant has filed an appeal, and I understand from the parties that that appeal is probably to be heard around the first week of April 2024.

It is not in issue that both the Court of Appeal and the Singapore International Commercial Court (the “SICC”) have concurrent jurisdiction to hear applications for a stay of a judgment. It is also not in issue that under the previous O 57 r 16(4) of the Rules of Court (2014 Rev Ed) (the “ROC 2014”) and the current O 18 r 35(2) of the Rules of Court (2021 Rev Ed), notwithstanding that concurrence, the Court of Appeal has indicated that it would not exercise its jurisdiction unless the Court of first instance exercises its jurisdiction in respect of the stay first. There has been recent authority in respect of that concurrency after the establishment of the SICC, referring to this approach of the Court of Appeal to the concurrent jurisdiction: CPIT Investments Ltd v Qilin World Capital Ltd and another [2017] 5 SLR 148. It may be that having regard to O 110 r 53 of the Rules of Court and the constitution of the courts in the SICC, the requirement that the Court at first instance exercise its jurisdiction first before the Court of Appeal will exercise its jurisdiction may develop over time, in considering the need for the efficiency of a commercial court and the need to ensure a just, quick and relatively cheap litigation.

The affidavits in support of the application for the establishment of a right to a stay included the affidavits filed by the applicant of Mr Martin Eichmann of 16 August 2023 and 19 October 2023, of Mr Vasil Bibilashvili of 16 August 2023, of Mr William Bowring of 22 August 2023, and of Mr James Nicholson, who was an expert who gave evidence in the trial. Mr Nicholson’s report of 9 October 2023 is attached to his affidavit. The plaintiffs, respondents to this application, relied upon the affidavit evidence of Sarah Caroline Rees, sworn on 18 September 2023 and 19 October 2023.

There were numerous issues raised in respect of the application, however, I am able to deal with those issues shortly because the plaintiffs are, in principle, prepared to consent to a stay of execution of the judgments if the applicant pays into Court the judgment sum, costs and interest.

The defendant applicant’s position is that it is prepared to furnish security to cover the entire judgment sum, but that it is adequate and practical for security to be furnished by way of an on-demand bank guarantee issued by UBS AG (“UBS”), or alternatively, if the Court considered that such a guarantee was inadequate security, by way of payment into an escrow account.

The applicant made very clear the point that was made in the Merits Judgment and the Quantum Judgement that there was to be no double recovery in respect of damages in this suit and the Bermuda proceedings. As the defendant applicant said in its written submissions, the only issues now in dispute are the form of security and the steps to be taken to avoid double recovery in respect of damages in this suit and the Bermuda proceedings.

The principles to be applied to this matter have been referred to by both parties as being in line with the principles relating to the provision of security for costs. The applicant relied upon the decision in Hyflux Ltd (in compulsory liquidation) and others v Lum Ooi Lin [2023] SGHC 113 (“Hyflux”), in support of its submissions that the bank guarantee, or alternatively, the escrow account, is adequate security in this instance.

The defendant’s reliance upon Hyflux included emphasis on [26] as follows:

At the end of the day, as Mr Tan submitted, it bears repeating that the overarching consideration is whether the proposed form of security is adequate to ensure that the defendant will recover the costs of the action if he succeeds. That being said, there will be some forms of security that are more readily characterised as being adequate either due to their inherent advantages or historical usage. It may be easier for a plaintiff to establish adequacy in respect of these forms of security. However, this does not mean that forms of security outside of these traditional ones can never be adequate; it all depends on their characteristics and how they apply to the facts of the case at hand.

As can be seen from the above extract, it is important to refer to the characteristics of the security and “how they apply to the facts of the case at hand”.

It is therefore appropriate to refer to some aspects of the background to the dispute between these parties and the nature of this litigation. There is no doubt that this case is an example of extremely adversarial litigation. Every point available to be taken and even some that may have not been available were taken. The litigation has spanned many years; it commenced in 2017. The Merits Judgment refers to the background between the parties, and it is unnecessary to detail it again, but that judgment should be read with these reasons.

The chaotic process of the lack of production of documents and the actual late production of documents during the trial was an example of the way in which the parties related to each other. The late admission on day 10 of the trial and the various disputes between the parties as to...