Conex Oil & Gas Holdings Ltd v PSTV Energy FZCO

Neutral Citation Number: [2026] EWHC 2325 (Comm)

IN THE HIGH COURT OF JUSTICE KING'S BENCH DIVISION

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

COMMERCIAL COURT Case No: CL-2025-000338 Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL Date: 10 September 2026 Before :

LOUISE HUTTON KC - - - - - - - - - - - - - - - - - - - - - Between : CONEX OIL & GAS HOLDINGS LTD - and -

PSTV ENERGY FZCO - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Applicant/ Defendant Respondent/ Claimant Simon Hale KC and Elliott Cook (instructed by Farrer & Co) for the Applicant Michael Fealy KC (instructed by CMS Cameron McKenna) for the Respondent Hearing date: 11 June 2026 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 10.30am on Thursday the 10th September, 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. Approved Judgment Conex Oil & Gas Holdings Ltd v PSTV Energy FZCO Louise Hutton KC : Introduction 1.

2. Conex Oil & Gas Holdings Ltd (“COGH”) applies for a stay of the proceedings issued by PSTV Energy FZCO (“PSTV”) pursuant to CPR 11, alternatively on case management grounds. COGH is incorporated in the British Virgin Islands and is the holding company for a group of companies selling oil and gas in West Africa. One of those group companies is Conex Petroleum Services Inc. (“CPS”), incorporated in Liberia. PSTV is a supplier and trader of marine fuel, incorporated in Dubai. Its ultimate parent company is Bunker Holdings A/S, based in Denmark. PSTV’s claim, issued on 24 July 2025, is for the sum demanded by PSTV from COGH pursuant to a guarantee (the “Guarantee”) given by COGH of the obligations of CPS under an agreement between PSTV and CPS dated 10 June 2021 by which PSTV agreed to, and did, supply marine fuels to CPS for distribution into the local markets in Liberia and Sierra Leone (the “Supply Agreement”). The Supply Agreement is governed by English law and contains an arbitration agreement providing for arbitration in London.

3. The Guarantee given by COGH was delivered to PSTV on or around 4 September 2023. Clause 23 of the Guarantee provides as follows: This Deed shall be governed by and construed in accordance with the laws of England. The courts of England have non- exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Deed and that, accordingly, any legal action or proceedings arising out of or in connection with this Deed (hereinafter called ‘Proceedings’) may be brought in those courts, and each of the Guarantor and the Beneficiary irrevocably submits to the non-exclusive jurisdiction of those courts. The Guarantor irrevocably agrees that should the Beneficiary take any Proceedings anywhere (whether for an injunction, specific performance, damages or otherwise), no immunity (to the extent that it may at any time exist, whether on the grounds of sovereignty or otherwise) from those Proceedings, from attachment (whether in aid of execution, before judgment or otherwise) of its assets or from execution of judgment shall be claimed by it or on its behalf or with respect to its assets, any such immunity being irrevocably waived. The Guarantor irrevocably agrees that it and its assets are, and shall be, subject to such Proceedings, attachment or execution in respect of its obligations under this Deed.

4. There is a dispute between CPS and PSTV over the sum due (if any) from CPS to PSTV under the Supply Agreement. CPS initially admitted owing approx. USD 4.8m to PSTV under the Supply Agreement and, at the date of the Claim Form, a payment of approx. USD 1.35m had been made by CPS to PSTV, but CPS now says that no sum is due and that, in fact, money is due from PSTV to CPS. Approved Judgment Conex Oil & Gas Holdings Ltd v PSTV Energy FZCO 5.

6. The sum demanded by PSTV from COGH under the Guarantee on 25 March 2025 was USD 24,357,111. In light of the sum paid by CPS, the sum claimed in these proceedings by PSTV from COGH was USD 23,007,171 at the date of the Claim Form. By its application notice, COGH seeks a stay of these proceedings pursuant to CPR 11 and/or the inherent jurisdiction of the Court and/or CPR 3.1(2)(f) because, it says, the courts of Liberia, in which legal proceedings in respect of essentially the same dispute are already on foot, are clearly or distinctly a more appropriate forum for determining this claim. The proceedings so far 7. 8. 9. 10. 11.

12. The relevant history of the dispute and the two sets of proceedings is addressed in the evidence filed by the parties. The course of events is common ground and the following account is largely based on the chronology agreed between the parties for the purpose of this hearing, supplemented by points made in the parties’ evidence filed for this hearing. Following the demand made by PSTV for payment from COGH on 25 March 2025, PSTV’s solicitors (“CMS”) sent a letter before action to COGH on 26 June 2025. That letter required COGH to respond within 21 days, by 17 July 2025, confirming whether it accepted the claim and if not, the reasons why. On 17 July 2025, COGH started proceedings in Liberia (the “Liberian Proceedings”) by bringing a Petition for Proper Accounting against PSTV. COGH’s evidence is that a Petition for Proper Accounting is a judicially supervised accounting exercise carried out to reconcile the parties’ transactions and determine the amounts owing. On 24 July 2025, PSTV issued the Claim Form in these proceedings (the “English Proceedings”). On the same day, PSTV commenced arbitral proceedings against CPS (“the Arbitration”) to recover the amounts owing under the Supply Agreement. PSTV says (by the evidence of Ms Neill of CMS) that that step was taken because PSTV recognises that CPS disputes the sum claimed under the terms of the Supply Agreement, and

that dispute is to be resolved by arbitration in accordance with the terms of the arbitration agreement in the Supply Agreement. On 28 July 2025, PSTV filed its response to the Petition in the Liberian Proceedings (its Respondent’s Returns), and a Motion to Dismiss. Both those documents raised jurisdictional objections to the Liberian Proceedings. COGH relies on the fact that the Respondent’s Returns also dealt with the merits of the Petition (albeit while stating that the pleading on the merits was “without prejudice to the Respondent’s position on jurisdiction and do[es] not amount to a submission of jurisdiction to this court”), and on the fact that PSTV did not file a Motion for Special Appearance, which PSTV says is the way in which a party to proceedings before the Liberian court preserves its right to object to the Liberian court’s jurisdiction without submitting to that jurisdiction.

13. On 7 August 2025 in the Liberian Proceedings, COGH filed its Reply to the Respondent’s Returns and its Resistance to the Motion to Dismiss. Approved Judgment Conex Oil & Gas Holdings Ltd v PSTV Energy FZCO 14. On 12 August 2025, there was a hearing in the Liberian Proceedings of the Motion to Dismiss, and on 4 September 2025, the Liberian Court rejected PSTV's Motion to Dismiss, finding the Liberian Court had personal jurisdiction over PSTV and subject matter jurisdiction over the dispute. In its judgment, the Liberian Court stated: We note that during the oral arguments, Movant's counsel conceded to the fact that the Court does have personal jurisdiction over the Movant since the Movant has voluntarily appeared but insist that the case should be dismissed on the other statutory grounds mentioned in its motion. 15. 16. 17.

18. On 15 October 2025, COGH was served in the BVI with the Claim Form in the English Proceedings. On 14 November 2025, COGH filed an Acknowledgement of Service in the English Proceedings, indicating an intention to contest jurisdiction and on 9 January 2026, COGH filed this stay application (the “Stay Application”). In his evidence in support of the Stay Application, Mr Heyes of COGH’s solicitors (“Farrers”) gave evidence of Liberian law based on information he had received from COGH’s Liberian counsel and stated that COGH intended to provided evidence on Liberian law from an independent Liberian lawyer. On 20 January 2026, there was a pre-trial conference in the Liberian Proceedings. PSTV did not appear at this hearing. The Liberian Court ruled the Petition should proceed and directed the appointment of independent accountants. On 23 January 2026, PSTV's Liberian counsel filed a Notice of Suspension of Legal Services in the Liberian Proceedings. On 2 February 2026, COGH's Liberian counsel wrote to the Liberian Court, stating that the Notice to Suspend Legal Services was a nullity.

19. On 3 February 2026, CMS wrote to Farrers proposing that: i) ii) The English Proceedings be stayed once the issues of jurisdiction and manifest error had been resolved and PSTV (if successful) was paid by COGH; and PSTV and COGH agree to be bound by the outcome of the Arbitration, so that if CPS was successful in arguing that the sum due under the Supply Agreement was less than the outstanding sum demanded under the Guarantee then, provided that payment had been made by COGH, PSTV would be required to refund and return the relevant difference to COGH without the need for any further litigation or disputes process.

20. On 6 February 2026, PSTV filed its evidence in answer to the Stay Application in the English Proceedings. On 11 February 2026, CMS stated in a letter to Farrers that COGH required an extension of time if it wished to file and serve expert evidence in support of the Stay Application.

21. On 17 February 2026, PSTV made an application for an interim payment in the English Proceedings. Approved Judgment Conex Oil & Gas Holdings Ltd v PSTV Energy FZCO 22. 23. 24. 25. 26. 27. 28. 29. 30.

31. On 20 February 2026, PSTV served a statutory demand on COGH in the BVI. Also on 20 February 2026, COGH filed its evidence in reply on the Stay Application in the English Proceedings, and in that evidence, Mr Heyes again stated that COGH intended to adduce expert evidence from a Liberian lawyer. On 4 March 2026, COGH applied for an extension of time to respond to PSTV's interim payment application in the English Proceedings. On 6 March 2026, COGH applied in the BVI to set aside the statutory demand. On 17 March 2026, PSTV consented to COGH's application for an extension of time to respond to the interim payment application in the English Proceedings. On 1 April 2026, PSTV and COGH consented to the withdrawal of the BVI statutory demand and of the application to set it aside. On 15 May 2026, COGH applied in the English Proceedings for permission to rely on the expert report of Ms Brumskine (the “Permission Application”), at the same time serving her report on PSTV. COGH sought to have the Permission Application listed at a separate hearing before this hearing of the Stay Application but, following correspondence between the parties in relation to listing, COGH agreed on 21 May 2026 to the Permission Application being heard at the same time as the Stay Application. PSTV having continued to state that an extension of time was required for the Permission Application, COGH issued

an extension of time application on 27 May 2026. The applications listed for determination at this hearing therefore included the Permission Application and the related extension of time application, as well as the Stay Application. Having heard the parties’ submissions during the hearing, I decided to give permission for Ms Brumskine’s report to be adduced in evidence on the Stay Application for the reasons I gave in a short extempore ruling during the hearing.

32. Ms Brumskine’s report includes her view that a judgment in the Liberian Proceedings may be handed down within six to eight months of the ruling on 20 January 2026 directing the appointment of independent accountants. Since that evidence was filed, and as set out in a letter from Farrers to CMS, COGH’s Liberian counsel have informed Farrers that PwC Liberia was formally appointed as the independent accounting firm at a hearing on 27 May 2026, and that while the timing will depend on how quickly PwC Liberia are able to complete the work, following which the Liberian Court will review its report and give judgment on the Petition, COGH’s Liberian counsel expected the Liberian Court to deliver its determination in late August or early September 2026. Legal principles relevant to the application for a stay under CPR 11 33. COGH’s skeleton expressly recognised that although there “can be no absolute or inflexible rule governing” the exercise of the court’s discretion to stay proceedings (Donohue v Armco [2001] UKHL 64, [2002] 1 All ER (Comm) 97 at [24] per Lord Bingham), in a case where proceedings are commenced in England as the designated Approved Judgment Conex Oil & Gas Holdings Ltd v PSTV Energy FZCO jurisdiction pursuant to a non-exclusive jurisdiction clause (as well as in cases concerning exclusive jurisdiction clauses), the English court will not stay its proceedings

without “strong reasons”. That proposition is set out in Donohue at [24] (in the case of an exclusive jurisdiction clause) and in Antec International Ltd v Biosafety USA Inc [2006] EWHC 47 (Comm) at [7] and Deutsche Bank AG v Highland Crusader Offshore Partners LP [2009] EWCA Civ 725, [2010] 1 WLR 1023 at [64], and also Dicey, Morris & Collins on the Conflict of Laws, 16th Ed. at [12-106] (in the case of non-exclusive jurisdiction clauses).

34. Mr Hale KC (Leading Counsel for COGH) also recognised that the usual Spiliada factors going to convenience and expense will not by themselves amount to “strong reasons” but submitted that those factors can have an important role to play in the court’s consideration of whether there is a strong reason, relying on Standard Chartered Bank v Pakistan National Shipping Corporation [1995] 2 Lloyd’s Rep 365 at 378-379, The El Amria [1981] 2 Lloyd’s Rep 119 at 127-128, and The Eleftheria [1969] 2 WLR 1073 at 1077A-D, cited in Donohue at [24]. However, COGH’s skeleton further accepted “that a court may decline to grant a stay if the factors relied on by an applicant were foreseeable at the time of entering into the contract”. Mr Fealy KC (Leading Counsel for PSTV) put this hurdle for COGH as being rather higher, submitting that factors foreseeable at the time the jurisdiction clause was agreed were irrelevant, referring to Investec Bank v Protopapa [2025] EWHC 3202 (Comm) at [57] (citing Antec at [7]) and [60] and Spec 1 Limited v The Export-Import Bank of China [2026] EWHC 1162 (Comm) at [73]).

35. I accept that the fact a court was contractually chosen by the parties means that in principle it is not open to either party to object to the exercise of its jurisdiction on grounds which should have been foreseeable when the agreement was made: Dicey at [12-109] and Deutsche Bank AG v Highland at [50(7)] and [64] (at least in a case like this where there is no suggestion of a matter pertaining to the interests of justice, in the sense of the prospect of a fair trial rather than a factor of convenience, as to which, see Zephyrus Capital v Fidelis Underwriting [2024] EWHC 734 (Comm) at [125(ix)] per Henshaw J, and Spec 1, above, at [75]). Legal principles relevant to the application for a stay on case management grounds 36. As to the court’s power to stay English proceedings on case management grounds pending the conclusion of foreign proceedings, COGH relied on the judgment of the Supreme Court in Unwired Planet International Ltd v Huawei Technologies (UK) Ltd [2020] Bus LR 2422 at [99] for the proposition that the English courts have wide case management powers which include the power to impose a temporary stay on proceedings where to do so would serve the overriding objective, and that a temporary stay may be ordered where there are parallel proceedings in another jurisdiction, raising similar or related issues between the same or related parties, where the earlier

resolution of those issues in the foreign proceedings would better serve the interests of justice than by allowing the English proceedings to continue without a temporary stay. It is, however, important to note that the Supreme Court judgment in the Unwired Planet case, having stated this proposition, concludes at the end of [99]: But this would be justified only in rare or compelling circumstances: see per Lord Bingham MR at pp 185-186, and Approved Judgment Conex Oil & Gas Holdings Ltd v PSTV Energy FZCO Klöckner Holdings GmbH v Klöckner Beteiligungs GmbH [2005] EWHC 1453 (Comm).

37. COGH also referred to the decision of Edwin Johnson J in Sony Music Entertainment UK Ltd v Noel Redding Estate Ltd [2023] EWHC 941 (Ch) at [126] for the proposition that the test for a case management stay to await the outcome of proceedings in another jurisdiction is whether, in the particular circumstances of the relevant case, it is in the interests of justice for a stay to be granted on case management grounds. I accept that that is indeed the test, as explained in the Unwired Planet case. I also note that, in the Sony Music case, the Judge continued as follows: As Males LJ explained [in Athena Capital Fund v Secretariat of State for the Holy See [2022] EWCA Civ 1051], this test is not easily satisfied in the context of applications for a stay of the kind which were sought in Reichhold and Athena Capital. The court will ‘need a powerful reason to depart from its usual course and such cases will by their nature be exceptional’ … Whether the test is taken from Reichhold at first instance, or Reichhold in the Court of Appeal, or Athena Capital, a powerful reason is required before a court should grant a stay in order to await the outcome of proceedings in another jurisdiction. The case must be an exceptional one, and it is only in rare and compelling circumstances that it will be in the interest of justice to grant a stay on case management grounds in order to await the outcome of proceedings in another jurisdiction.

38. COGH also submitted that an application for a stay on case management grounds requires separate consideration from any application based on the question of appropriate forum, and that the two applications do not necessarily engage the same factors, relying on Sony Music at [119]. That was not disputed by PSTV and I give the applications separate consideration below. COGH’s submissions on the application for a stay under CPR 11 39.

40. In seeking a stay on the basis of CPR 11, COGH relied on the following matters. First, COGH says that the same issues involving the same parties are already in play in the Liberian Proceedings, and that Liberia is a jurisdiction with a far closer connection to the parties and to the dispute than England. Ms Brumskine's report states that judgment in the Liberian proceedings may now be imminent (and I have referred above to subsequent correspondence to that effect). COGH makes the following points: i) ii) Allowing English proceedings to progress involves not only unnecessary expense and duplication, but also risks inconsistent judgments on the same issues involving the same parties. COGH says there is nothing to be said in favour of duplicating expense by the pursuit of proceedings in two different jurisdictions if that can be avoided Approved Judgment Conex Oil & Gas Holdings Ltd v PSTV Energy FZCO without injustice to any party, and that there is no suggestion by PSTV that either party will suffer any injustice if the dispute was resolved solely in Liberia. iii) COGH says it is likely any judgment from the Liberian court will be handed down soon and that, as a result: a) b) c) d) It will not be possible to enforce any English judgment in Liberia; In any event, any attempt to enforce an English judgment in Liberia will (because there is no bilateral enforcement treaty

between England and Liberia) involve contested Liberian enforcement or recognition proceedings; COGH's evidence is that its assets are located in Liberia and Sierra Leone and none are located in the UK, so it is not clear how the English proceedings would lead to an effective financial recovery, even if COGH were held liable under the guarantee in English proceedings; And if the English judgment turns out to be consistent with the Liberian judgment, the duplicative English proceedings would have wasted time, costs and judicial resources.

41. COGH says that as a matter of Liberian procedural law, PSTV has submitted to the personal jurisdiction of the Liberian courts. COGH relies on the Liberian court's observation referred to above in its ruling on jurisdiction, as well as Ms Brumskine’s evidence. COGH says that PSTV's failure to file a motion for special appearance is not merely a technical failing, but is equivalent to a failing by a defendant in English proceedings to file a CPR Part 11 application in time, with the result that defendant is deemed to have submitted. Mr Hale relied on Svendborg v Wansa [1996] 2 Lloyd’s Law Reports 559 at 570 as authority for the proposition that voluntary submission to the jurisdiction of the foreign court can be a good reason not to grant an anti-suit injunction.

42. COGH says that the party's dispute can be justly and conveniently dealt with in Liberia: i) ii) iii) iv) The Liberian Court will apply English law, including in relation to the proper construction of the Guarantee. The Petition for Proper Accounting, involving an independent expert accounting exercise (with judicial supervision) to reconcile the PSTV and CPS accounts, is particularly apt to resolve this dispute. As to PSTV’s argument that this process is the antithesis of clause 22 of the Guarantee, then PSTV will have the chance to advance that case in Liberia and it may succeed. But if that argument is wrong, as COGH contends, then the procedure provided by the Petition will be beneficial. COGH says there has been no suggestion that PSTV will suffer any injustice in Liberia. PSTV could have made forum non conveniens arguments at the pre- trial conference on 20 January 2020 in Liberia. To the extent PSTV suffers any prejudice in the Liberian proceedings, that prejudice is of its own making by Approved Judgment Conex Oil & Gas Holdings Ltd v PSTV Energy FZCO refusing to participate following the Liberian court's ruling of 4 September 2025. It is open to PSTV to re-engage with the Liberian proceedings at any time.

43. Finally, COGH says matters of convenience and close connection also favour Liberia over England. The underlying dispute concerns transactions that occurred in or off the coast of Liberia and Sierra Leone. Whilst COGH is a BVI company, its evidence is that it does business in - and its assets are located in - Liberia and Sierra Leone. It does not have any assets in the BVI nor any real physical presence. CPS is a Liberian company. PSTV is a UAE company. COGH's personnel are located primarily in Liberia including its two likely witnesses in this dispute. The majority of documents and evidence are located in Liberia and Sierra Leone. PSTV’s submissions on the application for a stay under CPR 11 44. PSTV says that none of the matters relied on by COGH justify a stay of these proceedings. It makes the following points: i) ii) iii) iv) That COGH’s witnesses and documents are in Liberia or Sierra Leone and that the relevant events may have taken place there is irrelevant. The dispute concerns whether the Guarantee is enforceable and (if so) what sum PSTV is entitled to claim under it. That such a dispute may involve the matters relied upon by COGH was foreseeable at the time the Guarantee was executed by COGH. None of the other matters relied upon by COGH were unforeseeable at the time the Guarantee was executed. In any event, the dispute as to the state of the account between CPS

and PSTV falls to be resolved in the London arbitration so the suggested inconvenience of litigating those matters in London cannot be avoided. Furthermore, there are issues of English law that remain in dispute between the parties that will be dispositive of PSTV’s right to recover the sum demanded. These can be resolved on the basis of legal submissions in proceedings in England, but will presumably involve the cost and inconvenience of evidence of English law in Liberia. Liberia is not “a jurisdiction with a far closer connection to the parties and the dispute than England”, as COGH submits. The dispute concerns the proper construction and effect of the Guarantee, which is governed by English law and has an express choice of English jurisdiction. Accordingly, there are two jurisdictionally relevant connecting factors with England, and none with Liberia. The only Liberian entity is CPS, which COGH deliberately chose not to join to the Liberian proceedings. The existence of the Liberian proceedings is irrelevant as the authorities expressly discount the existence of parallel proceedings as a reason to stay proceeding based on a non-exclusive jurisdiction clause. If clause 23 permits parallel proceedings, then this is a foreseeable factor and is not a strong reason for the English court, as the designated court, to decline to exercise its jurisdiction. v) That the Liberian

court has decided it has jurisdiction over COGH’s claim and has rejected PSTV’s challenge to jurisdiction, with the proceedings continuing Approved Judgment Conex Oil & Gas Holdings Ltd v PSTV Energy FZCO vi) vii) viii) there, is irrelevant to whether the English court should grant a stay. The existence of parallel proceedings is regrettable but is an inherent risk of a non- exclusive jurisdiction clause (Deutsche Bank at [107]). Any decision by the Liberian Court on the Petition for Proper Accounting will not be recognised or enforced in England because the Liberian Court does not have jurisdiction over PSTV according to the English rules of conflicts of law. PSTV has no territorial connection with Liberia and did not agree to submit to the jurisdiction of its courts. Accordingly, it is irrelevant whether COGH’s choice to pursue the Liberian proceedings results in a judgment inconsistent with an English judgment. That the Liberian judgment may be res judicata in Liberia and prevent the enforcement of an English judgment there assumes that COGH will not comply with the terms of an English judgment. COGH cannot rely on its intended refusal to comply with an English judgment to support a stay of the proceedings. In any event, COGH is incorporated in the BVI where an English judgment can be readily enforced by registration and can form the basis of a winding up petition. PSTV will

suffer injustice if the dispute is to be resolved solely in Liberia. First, that would be to deprive PSTV of its contractual right to bring proceedings in England. Moreover, PSTV submits that this court is better placed to resolve the issues of construction of the Guarantee following submissions by English leading counsel, than a court in Liberia based on evidence of foreign law and submission by local lawyers, and characterises any suggestion to the contrary as unreal. In addition, PSTV says that COGH’s intended reliance upon the date of execution of the Guarantee by PSTV as a defence in Liberia (but not in England) is troubling. ix) As a matter of English law, PSTV’s unsuccessful jurisdiction challenge is not a submission to the Liberian court. The matter is governed by section 33 of the Civil Jurisdiction and Judgments Act 1982. Dicey at [14-077] says: The general thrust of the authorities is that for so long as the defendant asserted, and is obviously still asserting, as its primary defence that the court has no jurisdiction over it in relation to the merits of the claim, then even if it also takes steps which are purposeful in relation to the merits of the claim, doing so should not be taken to mean that it has submitted to the jurisdiction for the purposes of the common law of submission, and has abandoned the challenge for the purpose of s.33. The real question for the

English court should not be whether the defendant has taken a step in proceedings which prepare for the trial of the merits, but whether it has chosen to abandon its challenge to the jurisdiction. x) Furthermore, PSTV says that whether PSTV has submitted to the jurisdiction of the Liberian court for the purpose of recognition of a judgment from that court in this jurisdiction is a matter of English law: Dicey at [14-077]. Approved Judgment Conex Oil & Gas Holdings Ltd v PSTV Energy FZCO xi) xii) Since its challenge to jurisdiction was rejected, PSTV has taken no further part in the Liberian proceedings and its evidence is that it intends to take no further part. PSTV submits that England is also a neutral forum for the resolution of the dispute and says that, in contrast, Liberia is not a neutral forum as CPS is based there and COGH has assets there. Discussion and decision on the application for a stay under CPR 11 45. I have accepted above that it is in principle not open to COGH to object to the exercise of the English court’s jurisdiction on grounds which should have been foreseeable when the jurisdiction agreement was made. None of the matters relied on by COGH provide any reason why that principle should not apply in this case, and it follows that it is not open to COGH to rely on a number of the matters on which it relies, including the following: i) ii) The submission

that the Liberian Court is an available forum where the dispute can be justly decided; The submission that the Liberian Court is a more convenient jurisdiction because the transactions took place in or near Liberia and Sierra Leone, COGH has assets and personnel (including its two likely witnesses) in Liberia and Sierra Leone (and no assets or real physical presence in the BVI) and CPS is a Liberian company, and the majority of the documents and evidence are located in Liberia and Sierra Leone; iii) The difficulty of enforcing a judgment obtained in English proceedings in Liberia. 46.

47. The principal basis on which COGH relies in making this application is the existence of the Liberian Proceedings and the submission that they may shortly result in judgment. PSTV responds that the existence of concurrent proceedings is also a matter which was foreseeable when the jurisdiction agreement was made, and that it is therefore not open to COGH to rely on the Liberian Proceedings as the basis for a CPR 11 stay. I accept that the existence of a concurrent proceedings is a matter which is foreseeable when parties agree a non-exclusive jurisdiction clause, and that the existence of concurrent proceedings is (at least in itself) therefore not usually something which can provide the basis for a stay under CPR 11. In Antec at [7(iii)], in a passage recently cited (for example, in Investec v Protopapa at [57]), Gloster J (as she then was) said: Such overwhelming or very strong reasons do not include factors of convenience that were foreseeable at the time that the contract was entered into (save in exceptional circumstances involving the interests of justice); and it is not appropriate to embark upon a standard Spiliada balancing exercise. The defendant has to point to some factor which it could not have foreseen at the time the contract was concluded. Even if there is an unforeseeable factor or a party can point to some other reason which, in the Approved Judgment Conex

Oil & Gas Holdings Ltd v PSTV Energy FZCO interests of justice, points to another forum, this does not automatically lead to the conclusion that the court should exercise its discretion to release a party from its contractual bargain … In particular, the fact that the defendant has, or is about, to institute proceedings in another jurisdiction, not contemplated by the non-exclusive jurisdiction clause, is not a strong or compelling reason to relieve a party from his bargain, notwithstanding the undesirability of parallel proceedings. Otherwise, a party to a non-exclusive jurisdiction clause could avoid its agreement at will by commencing proceedings in another jurisdiction … .

48. In Spec 1 (above) at [74], Bright J made the same point: In particular, if the parties choose to contract on a basis that permitted parallel proceedings in more than one jurisdiction, such that it is something that can be said to have been contemplated by the contract, then it is difficult for either of them to rely on this as a strong reason for the English court to decline jurisdiction, where it is the designated court: Deutsche Bank AG v Sebastian Holdings AG [2009] EWHC 3069 (Comm), per Burton J at [24] (accepted as correct in the Court of Appeal, [2010] EWCA Civ 998); Standard Chartered Bank (Hong Kong) Ltd v Independent Power Tanzania Ltd [2015] EWHC 1640 (Comm), per Flaux J at [109]-[110]; [2016] EWCA Civ 411, per Longmore LJ at [24].

49. A position similar to the one here was considered by Moore-Bick J (as he then was) in Mercury v Communication Telesystems [1999] 2 All ER (Comm) 33. Having rejected the “subsidiary factors” relied on by the applicant as not being of sufficient weight to justify a stay even if the applicant were entitled to rely on them in the light of the jurisdiction clause (those factors including the nature of the issues in the dispute and the available processes for deciding them, the location of documents and the available processes for obtaining disclosure, and the location of witnesses), Moore-Bick J said as follows at 43b-f: If CTS is to obtain a stay of these proceedings, therefore, it can only be on the grounds that there are concurrent proceedings in California in which the same issues will be litigated. Mr. Ivory submitted that that is a powerful factor of itself and one which is “neutral” in the sense that CTS cannot be criticised for having begun proceedings there. However, there would be more force in the argument if CTS had not expressly agreed to submit to the jurisdiction of the courts of this country. As Waller J. pointed out in British Aerospace v Dee Howard Co [[1999] 1 Lloyd’s Rep 368 at 376], it is the defendant, in this case CTS, who has brought upon itself the risk of two sets of proceedings since it must have been aware when it started its own action that Mercury

might well bring proceedings here to recover the amounts which it alleged still to be outstanding. If the court were generally to stay proceedings here simply on the grounds that the defendant had Approved Judgment Conex Oil & Gas Holdings Ltd v PSTV Energy FZCO already commenced proceedings in another jurisdiction, it would effectively deny the plaintiff the benefit of the defendant's submission to the jurisdiction and encourage other parties who have had second thoughts about their contracts to rush to begin proceedings in another forum. The proceedings in California are still in their early stages and Mercury has not acquiesced in their continuation. The fact that its challenge to the jurisdiction has now been heard and dismissed does not seem to me to take the matter any further since whenever this application was heard the court would have had to take account of the possibility that the proceedings there would continue. In the circumstances of the present case I do not think that the existence of those proceedings provides sufficient grounds for staying this action. 50. 51. 52.

53. For the same reasons, the existence of the Liberian Proceedings do not provide a “strong reason” amounting to a good basis for the grant of a stay of the English Proceedings in this case. Although the Liberian Proceedings are now more advanced, PSTV has taken no part in those proceedings since its challenge to the Liberian Court’s jurisdiction was dismissed, and it issued these English Proceedings only a week after COGH issued the Liberian Proceedings. As to COGH’s submission that it will be not just difficult but impossible for PSTV to enforce in Liberia any judgment it obtains in the English Proceedings, because of the existence of the Liberian Proceedings, that is also a matter that was foreseeable when the parties agreed the jurisdiction clause (because the existence of parallel English and Liberian proceedings was foreseeable), and therefore is not a matter on which COGH can rely. It does not in my view provide, in any event, a strong reason why the English Proceedings, which PSTV chose to commence and states that it intends to pursue, should be stayed. The procedural history of both sets of proceedings does not help COGH. It is clear, from the procedural timetable set out above, that COGH issued the Liberian Proceedings after receiving PSTV’s letter before action, in order that those proceedings should have started before PSTV commenced proceedings here. COGH issued

the Liberian Proceedings on the day by which PSTV’s letter before action sought a response from COGH. COGH places particular reliance on its contention that PSTV has submitted to the jurisdiction in the Liberian Proceedings, relying in particular on the matters set out below. I have summarised the procedural history of the Liberian Proceedings above and as there set out, PSTV’s pleadings in the Liberian Proceedings advanced arguments on the merits expressly without prejudice to its jurisdictional objections, and PSTV has not participated in the Liberian Proceedings since its motion to dismiss COGH’s claim on jurisdictional grounds was rejected. This is therefore not a case of voluntary submission similar to that in the Svendborg case (above). In Svendborg, after the application by the plaintiffs in the English proceedings for a stay in favour of England was dismissed by the court in Sierra Leone, the plaintiffs filed evidence in the Sierra Leone proceedings which (a) exhibited a draft proposed defence and (b) included the statement that they had “advised themselves to apply for leave to defend the claim on the merits”. Clarke J found (at 571) that there was “no doubt that the plaintiffs submitted to the jurisdiction of the High Court in Sierra Leone” on 4 June 1994, the date that Approved Judgment Conex Oil & Gas Holdings Ltd v PSTV Energy FZCO evidence was filed. An injunction

was not sought in England until January 1996. Thus, in that case it was not disputed that the plaintiffs in the English proceedings had previously submitted to the jurisdiction of the Sierra Leone courts and sought to defend the proceedings there on the merits (see the summary of the submissions of Mr Boyd QC, counsel for the plaintiffs, at 572), until the circumstances changed and the plaintiffs decided to seek an injunction from the English court. On the basis of the evidence before him, Clarke J found that it was an “exceptional case” and granted the anti-suit injunction sought.

54. I accept PSTV’s submission that for the purpose of recognition and enforcement of a foreign judgment by the English court, the requirement is whether the foreign court had jurisdiction according to the English rules of conflict of laws (Dicey at [14-059]). Here, the only ground relied on is PSTV’s alleged submission to the jurisdiction.

55. PSTV relied on the summary of the relevant law set out in Dicey at [14-077], which was not disputed by COGH: i) ii) iii) As a matter of English law, the characterisation of whether there has been a submission for the purposes of the enforcement of foreign judgments in England depends on English law, and the views of the foreign court are not determinative. The question whether there has been a submission is to be inferred from all the facts. “The general thrust of the authorities is that for so long as the defendant asserted, and is obviously still asserting, as its primary defence that the court has no jurisdiction over it in relation to the merits of the claim, then even if it also takes steps which are purposeful in relation to the merits of the claim, doing so should not be taken to mean that it has submitted to the jurisdiction for the purposes of the common law of submission, and has abandoned the challenge for the purpose of s.33 [of the Civil Jurisdiction and Judgments Act 1982]”.

56. PSTV’s pursuit of an unsuccessful jurisdiction challenge does not, therefore, itself amount to a submission to the jurisdiction which would provide a basis on which a judgment in COGH’s favour in the Liberian Proceedings could be recognised and enforced in England.

57. COGH relied on: i) The fact that PSTV’s Respondent’s Returns in the Liberian Proceedings addressed the merits of the Petition as well as advancing jurisdictional objections but, as set out above, the Respondent’s Returns stated in terms that the submissions on the merits were “without prejudice to the Respondent’s position on jurisdiction, and do not amount to a submission of jurisdiction to this court”. Applying the principles set out by Dicey (above), that is entirely consistent with PSTV asserting as its primary defence that the Liberian court has no jurisdiction and does not amount to a submission to the Liberian jurisdiction. Approved Judgment Conex Oil & Gas Holdings Ltd v PSTV Energy FZCO ii) iii) The statements by the Liberian court in its decision on jurisdiction, first, that PSTV “elected to appear before this Court by filing its Returns along with a motion to dismiss” (apparently a reference to the Respondent’s Returns, addressed above) and that “We note that during the oral arguments Movant’s counsel conceded to the fact that the Court does have personal jurisdiction over the Movant since the Movant has voluntarily appeared but insist that the case should be dismissed on the other statutory grounds mentioned this motion” (which included a challenge to the Court’s subject matter jurisdiction due to the existence of the arbitration clause). It appears (from their

wording and from the treatment of the issue by Ms Brumskine in her report, where she states that the election referred to by the Liberian court in the passage of its judgment quoted above, i.e. the election made by filing the Returns and the Motion to Dismiss, “is itself an act of voluntary appearance”) that both those statements reflect the Liberian court’s finding that, as a matter of Liberian law, PSTV submitted to the jurisdiction by filing the Respondent’s Returns and a Motion to Dismiss which addressed the merits as well as contesting jurisdiction (even though the merits arguments were expressly made without prejudice to the jurisdiction arguments). Again, applying the principles set out above, such conduct does not amount to a submission to the jurisdiction for the purpose of recognition and enforcement in England of any judgment given in the Liberian Proceedings. The report of Ms Brumskine which included her opinion that by not filing a Motion for Special Appearance and by pleading to the merits of the Petition as well as pleading jurisdictional objections, and by appearing by counsel to argue the motion to dismiss, PSTV had submitted to the jurisdiction as a matter of Liberian law. Again, applying the principles set out above, the position under Liberian law is not determinative, and given that PSTV’s pleadings advanced arguments on the merits expressly without prejudice to its jurisdictional objections, and that PSTV has not participated in the Liberian Proceedings since its motion to dismiss was rejected, the steps taken in Liberia do not amount to a submission to that jurisdiction for the purpose of recognition and enforcement in England. 58.

59. I conclude that there has been no submission by PSTV to the jurisdiction of the Liberian court which, as a matter of English law, amounts to a “strong reason” for the grant of a CPR 11 stay. PSTV participated in the Liberian Proceedings only up to the stage at which its challenge to the jurisdiction was dismissed, and as a matter of English law did not submit to the jurisdiction for the purpose of recognition and enforcement in England of any judgment given in the Liberian Proceedings. Accordingly, for all the reasons set out above, none of the matters relied on by COGH provide a basis for the grant of a CPR 11 stay of these proceedings, commenced pursuant to the jurisdiction agreement in the Guarantee. COGH accepts that a “strong reason” would be required, and none of the matters relied on in support of this application amount to such a reason. COGH’s submissions on the application for a stay on case management grounds 60. In support of its application for a stay on the alternative basis of case management grounds, COGH relied on the same matters as in relation to the CPR 11 stay application, with emphasis on the following: Approved Judgment Conex Oil & Gas Holdings Ltd v PSTV Energy FZCO i) ii) iii) There is no need for duplicative proceedings in two different jurisdictions which will involve unnecessary expense. This outweighs any prejudice PSTV might suffer by the

English Proceedings being paused (by a case management stay) pending the notification of the outcome of the Liberian Proceedings, which may come relatively soon, and which is in the jurisdiction where the majority of COGH's assets are in any event located. PSTV may yet be satisfied with the outcome of the Liberian Proceedings. All the same issues are in dispute in the Liberian Proceedings, including PSTV's preferred construction of the Guarantee. Overall, COGH submits that a stay would further the overriding objective of seeking to have the parties’ dispute resolved justly and proportionately. There is nothing unjust about granting the stay sought. The costs of maintaining two separate sets of proceedings in two different jurisdictions is highly disproportionate. There is, it submits, a compelling case for a stay. PSTV’s submissions on the application for a stay on case management grounds 61. PSTV characterises COGH’s application on case management grounds as an afterthought and says that, in any event, the rare and compelling circumstances that justify such a stay do not exist.

62. PSTV identifies the relevant circumstances here as being that: i) ii) iii) iv) PSTV commenced proceedings as of right in this jurisdiction. COGH sought to pre-empt those proceedings by commencing the Liberian Proceedings in response. PSTV will not take any further part in the Liberian Proceedings. The judgment of the Liberian court will not be entitled to recognition or enforcement here.

63. PSTV submits that the Liberian Proceedings are in those circumstances irrelevant for case management purposes.

64. Moreover, PSTV relies on the fact that it states in its evidence that it intends to apply for summary judgment and submits that there is no good reason to prevent that application by way of a stay in favour of the Liberian proceedings. Discussion and decision on the application for a stay on case management grounds 65. As set out above, the authorities relied on by COGH make clear that it is only in “rare and compelling circumstances” that a stay on case management grounds because of the existence of parallel foreign proceedings would be in the interests of justice, and that “a powerful reason” would be required.

66. The circumstances here do not amount to circumstances which would justify the grant of a case management stay. In particular: Approved Judgment Conex Oil & Gas Holdings Ltd v PSTV Energy FZCO i) ii) iii) COGH chose to bring the Liberian Proceedings knowing that PSTV intended to commence these proceedings in England imminently in accordance with the terms of the jurisdiction agreement in the Guarantee; PSTV has not participated in the Liberian Proceedings since the Liberian Court rejected its jurisdictional arguments; and For the reasons set out above, any judgment of the Liberian Court will not be entitled to recognition or enforcement in this jurisdiction.

67. There is no reason why the interests of justice are, in all the circumstances of this case, served by the grant of a case management stay requiring PSTV to await judgment in the Liberian Proceedings before pursuing its claim in these proceedings. I have taken into account the evidence that judgment in the Liberian Proceedings may now be imminent and COGH’s submission that that judgment may be in PSTV’s favour. The parties agreed to a jurisdiction clause which envisaged the possibility of parallel proceedings in circumstances such as this, and COGH chose to start the Liberian Proceedings in response to the letter before claim it received from PSTV. In all the circumstances of this case, it would not be in the interests of justice to permit COGH now to rely on the existence of the two sets of proceedings as a reason why PSTV’s claim in the English Proceedings should be stayed as a matter of case management because of the existence of the Liberian Proceedings COGH started.

68. The Stay Application is accordingly dismissed.