Patrick Goodall QC and Craig Ulyatt have successfully resisted an application by a Zimbabwean company to set aside a without notice order permitting service by various alternative methods.
The claim arises out of overlapping ICSID arbitral awards obtained by the Claimant (Mr von Pezold) and the Defendant company (Border) respectively against Zimbabwe providing for compensation in the sum of US$124 million in relation to the expropriation in 2005 of a large agricultural estate in Zimbabwe pursuant to Zimbabwe’s infamous Land Reform Programme. Mr von Pezold seeks both an interim and final injunction to restrain Border from settling or enforcing its award against Zimbabwe. Border sought to set aside an order made on 9 April 2020 authorising service by various alternative methods. Border originally sought to argue that: (1) despite the Foreign Process Section being closed due to the Covid-19 lockdown, there was no good reason for authorising alternative service; and (2) pursuant to CPR 6.40(4), service was contrary to the law of Zimbabwe since Border is currently in judicial management in Zimbabwe (an insolvency process broadly analogous to English administration) and therefore subject to a Zimbabwean statutory moratorium against legal process.
By the time of the hearing, Border conceded that there was indeed a good reason for authorising alternative service so the judgment is concerned with the question of whether service of English process was unlawful as matter of Zimbabwean law. The Court concluded that the Zimbabwean statute did not apply to Border, that even if it did it did not have extraterritorial effect so as to bar the service of English process, and further that CPR 6.40(4) has no application in respect of alternative service upon a foreign defendant’s English solicitors in England.
The judgment is available here.
