Boon v South Sea Merchants Mariners Ltd Partnership and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Rory Mulcahy
• Judgment Date: 05 December 2023
• Neutral Citation: [2023] IEHC 678
• Court: High Court
• Docket Number: Record No.: 2022/3078 P

Between:

Daniel Boon (Also known as “Dany Boon”)

Plaintiff

and

South Sea Merchants Mariners Ltd Partnership, Thierry Fialek-Birles (Also known as “Terry Birles” and “Thierry Waterford-Mandeville”), United Far East and Oriental Holdings (Samoa) Limited, Hibernian Petroleum Limited Partnership, United Irish Estates Limited, Hibernian Yachts Company Limited, American Sail & Motor Navigation Inc., Amalgamated Plantations Company Limited, Asia Monaco Investments Limited, Asia Monaco Sarl, Sail and Motor Navigation Company Limited

Defendants

[2023] IEHC 678

Record No.: 2022/3078 P

THE HIGH COURT

Provision of the documents – Administration of justice – Prejudice – Plaintiff seeking leave to furnish affidavits and exhibits filed on behalf of the ninth and tenth defendants to the prosecuting authorities in Monaco – Whether the ninth and tenth defendants would be unfairly prejudiced if the documents were made available

Facts: The plaintiff, Mr Boon, alleged that he had been defrauded by the defendants, and in particular the first and second defendants, South Sea Merchants Mariners Ltd Partnership and Mr Birles, of almost €7 million. The plaintiff applied to the High Court, pursuant to the inherent jurisdiction of the court, seeking leave for the plaintiff’s Monégasque lawyers to furnish affidavits and exhibits filed on behalf of the ninth and tenth defendants, Asia Monaco Investments Ltd and Asia Monaco SARL, to the prosecuting authorities in Monaco who were investigating the fraud the subject matter of the proceedings. The plaintiff contended that no prejudice would be caused to the defendants by making available affidavits and exhibits volunteered in the context of the proceedings. His counsel argued that the documents would clearly be relevant to any criminal investigation in Monaco and that they were sought for the purpose of assisting in that investigation. Insofar as they had not been sought by the authorities investigating the fraud in Monaco, she claimed that it would be a logical impossibility to make it a requirement that the investigating authorities request the documents when, by definition, her client could not tell the authorities what was in them. She argued that many of the factors which were considered relevant in The Official Receiver v Skeene and Anor [2020] EWHC 1252 were of relevance in this case. The ninth and tenth defendants contended that the order sought by the plaintiff went beyond any of the authorities upon which he relied. Their counsel highlighted the fact that the plaintiff was pursuing civil remedies in conjunction with the criminal investigation in Monaco. Counsel argued that the court could not safely assume that there was no potential for injustice or prejudice.

Held by Mulcahy J that the plaintiff’s application suffered from the same infirmities as Hardiman J identified with the application in Breslin v McKenna [2008] IESC 43. Mulcahy J noted that there was no order from a Monégasque court or even a request from Monégasque authorities, which might enable the court to assume that any risk of prejudice would be addressed by the application of appropriate procedures in that jurisdiction. He noted that the plaintiff’s Monégasque lawyers’ own request acknowledged the uncertainty regarding the use which might be made of the documents once furnished to the investigating Judge. Mulcahy J held that where the request was being made by the plaintiff’s Monégasque lawyers, without any official imprimatur, the court could not, on the evidence before it, satisfy itself that the provision of that evidence might not unfairly prejudice the ninth and tenth defendants in defence of any criminal proceedings in Monaco, or the related civil claims being pursued by the plaintiff. Mulcahy J held that there was no basis upon which the court could be satisfied that there was any limitation on the manner in which the documents were used once provided to the Monégasque authorities, whereas in Skeene, the likely use to which the documents sought might be put seemed to have been well understood.

Mulcahy J held that the plaintiff had failed to discharge the onus of establishing that the provision of the documents was in accordance with the due administration of justice or that the ninth and tenth defendants would not be unfairly prejudiced if the documents were made available. Mulcahy J refused the application sought for leave to use the affidavits or exhibits sworn in the proceedings.

Application refused.

JUDGMENT ofMr Justice Rory Mulcahydelivered on 5 December 2023

Introduction.

1 . In these proceedings, the Plaintiff alleges that he has been defrauded by the Defendants, and in particular the first and second Defendants, of almost €7 million. This judgment, however, concerns an application by the Plaintiff, pursuant to the inherent jurisdiction of the court, seeking leave for the Plaintiff, or rather for his Monégasque lawyers, to furnish affidavits and exhibits filed on behalf of the ninth and tenth Defendants in these proceedings to the prosecuting authorities in Monaco who are investigating the fraud the subject matter of these proceedings.

The Proceedings

2 . In 2020, the Plaintiff commissioned the construction of a yacht for his personal use. The yacht was completed in July 2021. The Plaintiff claims that in January 2021, he was introduced to the second Defendant, Mr Birles, by a mutual acquaintance. He alleges that Mr Birles held himself out as an experienced maritime law attorney and the provider of services to the first Defendant, South Sea Merchants Mariners (“ SSMM”), an Irish limited partnership. Following his introduction to Mr Birles, the Plaintiff engaged SSMM to register the yacht and manage its operation. This led, it is alleged, to a fraud, as counsel put it, in three parts, which she described as the yacht maintenance fraud, the insurance fraud, and the investment fraud.

3 . The yacht maintenance fraud involved, it is alleged, Mr Birles diverting funds which had been transferred to him by the Plaintiff for the day-to-day operation of the yacht. It is said that the larger part of €2.235 million paid by the Plaintiff into an account operated by SSMM (“ the Account”) towards the maintenance of the yacht was diverted to Mr Birles' own use.

4 . The insurance fraud involved the Plaintiff paying €14,000 into the Account for insurance on the yacht to a company recommended by Mr Birles. It is alleged that the insurance company doesn't exist and that no insurance was ever put in place.

5 . The allegation in relation to the investment fraud is that, on the recommendation of Mr Birles, the Plaintiff transferred €4.5 million to the Account to be invested in an alleged investment opportunity by which money could be deposited in the Central Bank of Ireland with a guaranteed interest rate, free of tax. This scheme is also alleged to be a fabrication.

6 . The Plaintiff sought the return of all funds transferred to the Account, but SSMM failed to return any part of them.

7 . It is alleged that the third to eleventh Defendants are knowing recipients of some or all of the funds paid into the Account and fraudulently obtained from the Plaintiff. The case as pleaded against the ninth Defendant is that it is to be inferred that it is a knowing recipient of sums defrauded from the Plaintiff and a co-conspirator in the scheme to defraud him by receiving and/or assisting in the dissipation of funds from the Account by reason of the following pleaded allegations. First, the ninth Defendant is capitalised to the sum of €6.8 million, which closely approximates the amount paid by the Plaintiff into the Account. Second, the sole shareholder of the ninth Defendant is Ms Xin Zhao, the partner of Mr Birles, and she has an address given on relevant CRO forms as the address of the sixth Defendant, of which Mr Birles is the sole shareholder and which corresponded with the Plaintiff on behalf of Mr Birles. Third, Mr Birles is the secretary of the ninth Defendant.

8 . The tenth Defendant is a Monégasque company. In respect of this Defendant, it is alleged that Ms Zhao is the principal shareholder and that it has the same address as a residential address given by Mr Birles and Ms Zhao. It is alleged that a related company purchased a French property in 2022 to be held directly or indirectly on behalf of Mr Birles and Ms Zhao, and the Plaintiff pleads that it can be inferred that that property was purchased with proceeds of the alleged fraud.

9 . The Plaintiff issued proceedings against the first six Defendants in July 2022, and mareva-type relief was granted against those Defendants at that time. The ninth and tenth Defendants were joined as Defendants to the proceeding by order dated 11 October 2022, and mareva-type relief was granted against those Defendants on an interim basis on that date restraining those Defendants from reducing their assets below the sum of €6 million until further order (“ the Interim Order”). The ninth and tenth Defendants were also required to swear affidavits disclosing details of all bank accounts worldwide in which they had any interest (“ the Disclosure Order”).

10 . A Statement of Claim was delivered on 18 October 2022, and a full Defence was delivered on behalf of the ninth and tenth Defendants on 16 December 2022.

11 . In response to the Interim Order, Ms Zhao swore and filed a number of affidavits on behalf of the ninth and tenth Defendants. She swore an affidavit on 25 October 2022, which sought a variation of the Interim Order. In this first affidavit, Ms Zhao referred to the fact that she had been interviewed by Monégasque police in relation to their investigation of the second Defendant and related companies and that she was being questioned in relation to money laundering. She described herself as a victim in this matter. She swore affidavits on 25 October and 7 November 2022 in the purported discharge of the...