Boru Hatlari Petrol Tasmina as v Tepe Insaat Sanayii as

JurisdictionJersey
CourtCourt of Appeal
JudgeMcNeill JA
Judgment Date18 March 2016
Neutral Citation[2016] JCA 67C
Date18 March 2016

[2016] JCA 67C

COURT OF APPEAL

(SAMEDI DIVISION)

Before:

James McNeill QC, sitting as a single Judge

Between
Boru Hatlari Petrol Tasmina AŞ
First Appellant
Turkish Petroleum International Company Limited
Second Appellant
Botaş International Limited
Third Appellant
and
Tepe Insaat Sanayii AŞ
Respondent

Advocate D. Evans for the Appellants.

Advocate E. Moran for the Respondent

Authorities

Tepe -v- Botas [2016] JRC 012A .

Tepe -v- Botas [2016] JRC 047 .

Court of Appeal (Civil) Rules 1964.

Veka AG v TA Picot (CI) [1999] JLR 306 .

Trilogy v YT [2012] JCA 113 .

F G Hemisphere [2012] UKPC 27 .

IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation [2005] EWHC 726 (Com) .

Gheewala v Compendium Trust Company Limited [1999] JLR 74 .

Leeds v Admatch [2009] JCA 097 .

Court of Appeal — various application relating to potential appeal.

McNeill JA
1

There are before me, sitting as a single judge of the Court of Appeal, various applications relating to a potential appeal in this matter. The full circumstances are set out in the very detailed judgments dated 19 January ( Tepe -v- Botas [2016] JRC 012A) and 22 February, 2016 ( Tepe -v- Botas [2016] JRC 047).

2

The first application is made on behalf of the Appellants for a continuation of a stay of execution. The stay in question is one in respect of part of an Order of the Royal Court dated 22 February whereby the Respondent was given leave to enforce Arbitration Awards and, in pursuance of that, an arrêt entre mains confirmeé was made over the interest of the Appellants in the shares in certain companies. The Order sought to facilitate the sale of those shares against the event that the sum due under the Awards was not paid but a stay, for a period of 28 days, was granted in respect of the direction that the Viscount should realise the shares and the companies should co-operate with the Viscount. The reason for limiting the stay to 28 days was to allow the decision as to the stay and its terms to be reviewed by this Court: see paragraph 45 of the February Judgment.

3

The appeal in this matter is anticipated to be heard in the May sitting this year, although that is yet to be confirmed.

4

This court has jurisdiction to grant a stay of execution by virtue of the provisions of Rule 15 of the Court of Appeal (Civil) Rules 1964. It will do so if it appears that enforcement would render the appeal nugatory unless satisfied that the appeal is not presented in good faith, has no realistic chance of success or there are other exceptional circumstances: see Veka AG v TA Picot (CI) [1999] JLR 306, Trilogy v YT [2012] JCA 113.

5

Here, the learned Commissioner (Sir Michael Birt, Kt), with the full knowledge of the circumstances presented to the Royal Court, and noting that the appeal is made as of right, has expressed the view that sale of the Shares would render the appeal nugatory and that it could not be said that the appeal has no realistic chance of success or that it was not made in good faith: see paragraphs 29 to 34 of the Judgment of 22 February. Those views are entitled to great respect but I must make my own decision on the arguments presented to me.

6

For my own part I agree that the possibility of sale of the Shares should be treated as rendering the appeal nugatory. Whilst I recognise the force in arguments presented by Advocate Moran as to the likelihood of there being an actual sale in the very singular circumstances here, I do not consider that I am entitled to enter into speculation on that point. The stay requested is in respect of a sale, the purpose of the appeal is, among other matters, to prevent that sale taking place and the whole undertaking embraced within the shareholding is manifestly of value.

7

I am further of the view that it cannot be said that the appeal has no realistic chance of success. Sovereign Immunity arguments are almost invariably of considerable complexity and open to different views: witness the judgments in this court and the decision of the Privy Council in F G Hemisphere [2012] UKPC 27.

8

Further, I am not persuaded that there are sound grounds for suggesting that the appeal is not being made in good faith. That is a high test to overcome. Whilst I agree with Advocate Moran that it may not be necessary to find an abuse of process, and I take into account her concerns noted by the learned Commissioner at paragraph 41 (iii) of the February Judgment and repeated before me, the fact of there being a well arguable case seems to me to...

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2 cases
  • Boru Hatlari IIe Petrol Tasima as (also known as Botas Petroleum Pipeline Corporation Ltd) and Ors v Tepe insaat Sanayii as
    • Jersey
    • Court of Appeal
    • 4 November 2016
    ...Cie SA and the Bank of England [1952] AC 582. Compania Naviera Vascongado v Steamship “Cristina” and others [1938] AC 485. Botas v Tepe [2016] JCA 067C. Uprichard v Scottish Ministers [2013] UKSC 21, 2013 SC (UKSC) 219. Trilogy Management Limited v YT Charitable Foundation (International) L......
  • Cristiana Crociani v Edoarda Crociani
    • Jersey
    • Court of Appeal
    • 3 October 2017
    ...v Crociani [2017] JRC 145A . Winchester Cigarette Machinery Limited v Payne and Another [1993] WL 963008 . Boru and others v Tepe [2016] JCA 067C . C v Trilogy [2012] JCA 113 . Veka A.G. v T.A. Picot [1999] JLR 306 . Court of Appeal Consolidated Practice Direction No. 16 of September 1999 [......

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