03/12/2021

Paul Lowenstein QC and Sam Goodman successful in jurisdiction challenge in fourth Libyan Investment Authority litigation

The Libyan Investment Authority v Credit Suisse International & others [2021] EWHC 2684 (Comm)

In a decision handed down today, the Commercial Court has set aside orders which had granted the Libyan Investment Authority (“the LIA”) permission to serve three defendants out of the jurisdiction, and which extended the validity of the Claim Form. There will be no appeal, meaning that the litigation is now at an end. The LIA issued this fourth wave of claims in the Commercial Court in London against five defendants, complaining of alleged irregularities and fraud in its 2008 purchase of structured notes for US$200 million from Credit Suisse International. The thrust of those allegations was that the notes came to be sold to the LIA following a scheme of bribery and corruption involving the family of the late Colonel Ghaddafi.

Following a six-day hearing in June/July 2021, HHJ Pelling QC (sitting as a Judge of the High Court) set aside the service out and extension orders on the basis that these historic claims were time-barred and that the LIA had no realistic prospect of relying on the secondary limitation period afforded by s.32 of the Limitation Act, 1980. Additionally, the Judge held that both the LIA’s proprietary claim and its claim in knowing receipt against the Second and Third Defendants were bad in law and therefore bound to fail. Indemnity costs were awarded in favour of the Third Defendant.

In light of its conclusions on limitation, the Court held that it did not need to address the additional grounds offered by – amongst others – the Third Defendant for setting aside the service out and extension orders against it. These further arguments included several allegations of breach of the duty of full and frank disclosure and fair presentation by the LIA at the ex parte stage.

The judgment contains a comprehensive survey of the authorities on s.32 of the Limitation Act 1980 and provides an example of the Commercial Court summarily disposing of a fraud case, including setting aside orders for service out, on the basis of a limitation defence.

Paul Lowenstein QC and Sam Goodman of Twenty Essex acted for the successful Third Defendant, a Dubai-based investment manager. They were instructed by Philip Young and Rosie Wild of Cooke, Young & Keidan LLP.

Read the full judgment