GLAS SAS (London Branch) v European TopSoho S.À R.L & 2 Ors

Facts

GLAS SAS (London Branch) is trustee for holders of €250m exchangeable bonds issued by European TopSoho Sàrl, a Luxembourg company whose only substantial asset was its shareholding in SMCP S.A., a fashion company listed on Euronext Paris. When the bonds were not redeemed at maturity on 21 September 2021, the trustee took the pledged shares, but the issuer's unpledged SMCP shares had been transferred on 27 October 2021 for €1 to Dynamic Treasure Group Limited, of which Ms Qiu, the issuer's manager, appeared to be the ultimate beneficial owner. The shares ended up in that company's account with J.P. Morgan Chase N.A. Singapore (JPM), and the issuer was later declared bankrupt in Luxembourg, a curator taking control of it.

The trustee sued in England and in Singapore. In Originating Summons No 1193 of 2021 it claimed that the transfer was a transaction at an undervalue under s 438 of the Insolvency, Restructuring and Dissolution Act 2018, and obtained a Mareva injunction freezing the shares. In March 2022, having elected to proceed in England, it obtained a stay of OS 1193. On 12 July 2024 the English High Court gave summary judgment ordering the shares returned to the issuer, and permission to appeal was refused, but the second respondent did not comply. Because that judgment was not a money judgment, it could not be enforced in Singapore. The trustee therefore applied, in Summonses Nos 3120 and 3121 of 2024, to lift the stay and to join JPM as a respondent.

Issues

1. Whether the court had power to lift a case management stay imposed after a plaintiff elected to sue abroad, and when it should do so
2. Whether the stay should be lifted given the English judgment, the Xinbo arbitral award enforcement proceedings, and the bar on relitigating the merits
3. Whether JPM, a custodian against which no cause of action was asserted, should be joined as a party

Holding

The court allowed both applications: it ordered the stay on OS 1193 lifted, joined JPM as the third respondent, and allowed consequential amendments limiting the relief to the return of the shares. The second respondent was ordered to pay costs of the lifting application fixed at $12,000 to the trustee and $10,000 to the first respondent; the trustee and JPM bore their own costs of the joinder application.

Reasoning

A stay is suspensory, so the court remains seised and may lift it. A stay that follows forum election is a case management stay, so the exceptional-circumstances threshold for lifting a forum non conveniens stay need not apply in full. The court asks why the stay was granted, whether that basis has fallen away, what election the plaintiff made, what reasons it now gives and whether anything weighs against lifting. Under the doctrine of approbation and reprobation, a plaintiff who elected a foreign forum cannot use the stayed action to relitigate a merits decision it lost there.

With the amendment narrowing OS 1193 to the share transfer, which the second respondent accepted would still have attracted the original stay, the English judgment had finally determined the overlapping issue, so there was no longer a lis alibi pendens. The pending appeal over enforcing an award in favour of Xinbo was irrelevant: the award gave Xinbo only a priority right to compensation from sale proceeds, not a proprietary or security interest, any such claim belonged in the Luxembourg insolvency, and Xinbo was not before the court. The trustee intended to rely on the English judgment through issue estoppel, not to relitigate.

On joinder, a cause of action against JPM was not required under O 15 r 6(2)(b)(ii) of the Rules of Court (2014 Rev Ed), and the categories JPM cited were illustrative. Oro Negro Drilling Pte Ltd and others v Integradora de Servicios Petroleros Oro Negro SAPI de CV and others and another appeal (Jesus Angel Guerra Mendez, non-party) [2020] 1 SLR 226 was distinguishable because JPM held the disputed assets. No writ of execution could reach JPM as a non-party; binding a non-party through O 45 r 9(2) invited later challenge; and a Registrar's signature under s 14(1) of the Supreme Court of Judicature Act 1969 might not be recognised for shares listed in Paris. Given the continued non-compliance and price volatility, joinder was just and convenient, and JPM's costs as a neutral party would be modest.

From the judgment