Last week in commercial law: a visit to Pofadder, “astonishing” fees, and a grand (slam) conspiracy

Here’s a fun fact about Pofadder: VW tests its cars on a dusty farm just outside the booming Northern Cape town [attentive readers will note your summarist’s use of “car” instead of “motor vehicle”, which remains, inexplicably, the darling of lawyers and judges]. Your summarist is no farmer, but a farm with cars driving at 300km/h seems to make sub-optimal grazing pastures for cows and sheep. Be that as it may, Putt Estates, which owns the farm, hires Mr Compion’s company, Tripple T Consulting, to guard the farm. Putt Estates bought the farm, or the portion used for test driving, from a trust. It seems that as part of his security contract with Putt Estates, Mr Compion is allowed to keep some livestock on the farm, where, presumably, his cows and sheep graze happily in the Northern Cape sun while watching a new GTI speed by, probably driven by a German test driver whose dreams of Monza, Monaco, and Spa didn’t quite work out so he now finds himself on a dusty farm in Pofadder. Putt Estates terminates its contract with Mr Compion. Mr Compion refuses to remove his cows and sheep, which now roam free and dangerously close to the speeding cars. Putt Estates goes to urgent court. Mr Compion relies on an arbitration clause in the sale between Putt Estates and the trust, and argues that the sale grants him grazing rights over the farm. Northern Cape Division: the arbitration clause doesn’t help because there’s no dispute between Putt Estates and the trust, and although the sale grants the trust grazing rights over the farm, there is no evidence of a cession of the rights to Mr Compion, so the cows and sheep must go.

Salt House, part of the Allied Mobile group, pays Mr van Eyssen (a director of one of the companies in the Allied Mobile group, but not a director or employee of Salt House) about R900,000 two months before Salt House is wound up [in keeping with the previous legal writing tip: just say “pay”; lawyers are the only people on earth who say “made payment”]. Salt House’s liquidators sue to recover the payments as dispositions without value. Mr van Eyssen first argues that the Gauteng Division doesn’t have jurisdiction because he lives in Fish Hoek [which most Capetonians would say isn’t even in the jurisdiction of the Western Cape Division]. Mr van Eyssen next argues that the liquidators’ claim has prescribed, arguing that prescription starts running from when they were finally appointed (in 2020) and more than three years have come and gone between then and when the liquidators sued (in 2024). On the merits, Mr van Eyssen argues that one of the payments from Salt House is a loan from one of the directors in the Allied Mobile group, and the other payments from Salt House is remuneration that the Allied Mobile group owes him. Gauteng Division, Johannesburg: the prescription defence is no good because the liquidators only acquired knowledge of the payments in 2023 when they got hold of Mr van Eyssen’s bank statements (and Mr van Eyssen didn’t show that the liquidators could have acquired knowledge of the payments before then by exercising reasonable care, though it isn’t clear from the judgment why the liquidators could not have ascertained all this from Salt House’s own bank statements); the jurisdiction defence is no good either because Salt House paid from its Joburg-based bank account into Mr van Eyssen’s Joburg-based bank account; and the payments were dispositions without value because the alleged loan was not from Salt House and Mr van Eyssen never worked for Salt House.

Tens of thousands of London black cab drivers sue Uber for unlawful means conspiracy [a tort under English law based on defendants combining their efforts to cause harm to the claimant by unlawful means], alleging that Uber fraudulently misrepresented its business model to London’s transport regulator when applying for licences. The cabbies allege that the conspiracy started in 2012, but they only sue in mid-2024—which is a problem for the 6-year prescription period under English law (or limitation, as the English call it). The cabbies rely on s.32 of the Limitation Act, which postpones the start of the 6-year clock if the claim is based on the defendant’s fraud or if the defendant conceals any relevant fact until the claimant discovers the fraud or concealment or could with reasonable diligence have discovered it. Commercial Court: the cabbies could, with reasonable diligence, have discovered Uber’s alleged fraud from mid-2017 when the regulator published a decision declining to renew Uber’s licence (where the regulator concluded that Uber’s licence application was misleading in several respects), so the unlawful means conspiracy claim is time-barred.

Hulley Enterprises and a few others get arbitration awards against Russia for about $50 billion. Hulley Enterprises sues in England to enforce the awards. It succeeds in the Commercial Court. Russia appeals, and the Court of Appeal sets the appeal down for four days. Hulley Enterprises asks for about £4 million for security for costs for the appeal, including £2 million for its silk (its junior counsel must make do with a pauper’s fee of just £375,000). Court of Appeal: £2 million for a four-day appeal is an “astonishing” fee that “cannot be justified”, and while Hulley Enterprises is free to make its lawyers multi-millionaires overnight, we can’t require Russia to pay that much as security. 

Iskandar Safa and his company Privinvest pay about $100 million in bribes to Mozambique officials in a bit of embezzlement disguised as loans to develop Mozambique’s fishing industry, called the tuna bonds scandal. After a three month trial involving half the London Bar, the Commercial Court orders Mr Safa and others to repay Mozambique about £1 billion. Mr Safa dies intestate mid-trial. Mozambique gets permission to introduce a claim against Mr Safa’s widow, arguing that under Lebanese law a deceased’s next of kin succeeds to his assets and debts (Mr Safa was domiciled in Lebanon when he died). Mrs Safa is outside the jurisdiction, so Mozambique needs permission to serve outside the jurisdiction (which is, broadly speaking, the framework for personal jurisdiction under English law, comprising three requirements: (1) a serious issue to be tried on the merits, (2) a good arguable case that one of the jurisdictional gateways applies, and (3) England is clearly or distinctly the appropriate forum). Court of Appeal: permission granted because there is, under Lebanese law, a serious issue to be tried about Mrs Safa’s liability as an heir, there is a good arguable case that the necessary and proper party gateway applies, and England is an appropriate forum because you can’t swing a cat on Chancery Lane without hitting a lawyer involved in the tuna bonds litigation.

And finally, a treat for fans of tennis and jurisdiction. A few former tennis pros sue the ATP Tour and the entities that control Wimbledon (the All England Lawn Tennis Club), Roland Garros (the French Tennis Federation), and the US Open in federal district court in New York. The tennis pros allege that coordination between the grand slams on, amongst other things, player pay and tournament rules breaches the Sherman Act. The All England Lawn Tennis Club and the French Tennis Federation object to personal jurisdiction. A federal court has personal jurisdiction over a foreign defendant if there would be personal jurisdiction in the corresponding state court in terms of that state’s jurisdiction statute—commonly called a state’s long-arm statute—subject to constitutional limits under the Due Process Clause of the Fourteenth Amendment. District court: New York’s long-arm statute confers jurisdiction “over a non-domiciliary who commits a tort in New York State through an agent” and the tennis pros plausibly allege facts that show a conspiracy taking place in New York, and the exercise of jurisdiction satisfies the Due Process Clause and the purposeful availment test for minimum contacts with the forum, mostly because the All England Lawn Tennis Club and the French Tennis Federation joined this grand (slam) conspiracy knowing that acts in furtherance of the conspiracy were taking place in New York [for more on constitutional limits on personal jurisdiction under US federal law, look no further than one of the best ever legal writers, Elena Kagan—your summarist doesn’t think there are any constitutional limits on personal jurisdiction under South African law, but contrary views are, as always, encouraged].