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England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Therium (UK) Holdings Ltd v Brooke & Ors  EWHC 2421 (Comm) (07 October 2016)
Cite as:  EWHC 2421 (Comm)
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QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THERIUM (UK) HOLDINGS LIMITED
|(1) MR GUY BROOKE
(2) MS EMMY ETTEMA
(3) CABLE PLUS BV
Simon Williams (instructed by direct access) for the First Defendant
Hearing dates: 2nd & 4th August 2016
Crown Copyright ©
The Hon. Mr Justice Popplewell :
"6. Until after the Return Date or further order of the court the Respondents must not, without the prior consent in writing of the Applicant's solicitors:
(1) in any way dispose of deal with or diminish the value of any moneys, or the proceeds of such moneys, that they or any one of them have/has received, or receives in the future, directly or indirectly from De Brauw Blackstone Westbroek N.V. ("DBBW") and/or Mr Mark Barend Willem Biesheuvel ("Mr Biesheuvel") in connection with or arising out of Cable Plus BV's claim against DBBW and Mr Biesheuvel in the Netherlands with case number C/10/417537/HA ZA 13-137, including any interest earned or other income or assets received or derived therefrom (the "Claim Proceeds"). The Claim Proceeds include, in particular, any monies up to the value of €3,801,339.15 held in account number 5000596021000978 at the United International Bank N.V. Landhuis Joonchi II, Kaya, Richard J Beaujon z/n, PO Box 152, Willemstad, Curacao
7.(1) Unless paragraph (2) applies, each of the Respondents must within 60 hours of service of this order and to the best of their ability after making all reasonable inquiries, provide the Applicant's solicitors with the following information:
(a) The amount of the Claim Proceeds.
(b) Full details of the location of the Claim Proceeds, including any bank accounts where the Claim Proceeds are held.
(c) The terms of any settlement agreement with DBBW and/or Mr Biesheuvel and, if in writing provide a copy.
(2) If the provision of any of this information is likely to incriminate the Respondents, they may be entitled to refuse to provide it, but it is recommended that they take legal advice before refusing to provide the information. Wrongful refusal to provide the information is contempt of court and may render the Respondents liable to be imprisoned, fined or have their assets seized.
8. Within 4 working days after being served with this order, the First and Second Respondents must each swear, and the Third Respondent cause to be sworn, and serve on the Applicant's solicitors an affidavit setting out the above information."
"3. Each Respondent shall by no later than 4pm on 3rd May 2016 transfer such of the Claim Proceeds as are held by such Respondent or on that Respondent's behalf to a Euro account at the Court Funds Office to be held there to the order of the Court.
4. Insofar as the Claim Proceeds are held by the Third Respondent, including in particular the sum of €3,801,339.15 held in account number 5000596021000978 at the United International Bank N. V. Landhuis Joonchi II, Kaya, Richard J Beaujon z/n, PO Box 152, Willemstad, Curacao, the First and Second Respondents must to the best of their ability cause and/or procure the Third Respondent to transfer the Claim Proceeds in accordance with paragraph 3 above."
"6. Until the return date or further order of the court, the Respondent must not (save in compliance with the order of Phillips J dated 29 April 2016)-
a. remove from England and Wales any of his assets which are in England and Wales up to the value of €3,801,339.15.
b. in any way dispose of deal with or diminish the value of any of his assets whether they are in or outside England and Wales up to the same value.
10.(1) Unless sub-paragraph (4) applies, the Respondent must by 4pm UK time on 8 July 2016 and to the best of his ability inform the Claimant's solicitors of all his assets worldwide as defined in paragraph 7 of this order) including details of any bank accounts, whether or not in credit, giving the value, location and details of all such assets.
(2) Unless sub-paragraph (4) applies, the Respondent must, by 4pm UK time on 8 July 2016 and to the best of his ability, and after making all reasonable inquiries, inform the Claimant's solicitors in writing of the location, nature and value of all assets which represent in whole or in part or are derived from the Claim Proceeds.
(3) Unless sub-paragraph (4) applies, the Respondent must by 4pm UK time on 13 July 2016 and to the best of his ability provide the Claimant's solicitors with statements for each bank account held by him/it, including for the avoidance of doubt any bank account disclosed pursuant to paragraph 10(1) above, whether in credit or debit, and whether the account is still open or not, as well as any debit or credit card facilities on any account, for the period 1 November 2015 to the date of this order. Insofar as the bank statements cannot be disclosed within the aforesaid period, despite the Respondent acting to the best of his ability, and unless paragraph (4) applies, the Respondent is within 24 hours of the expiry of the said 5 day period to provide the Applicant's solicitors with a letter of authority entitling the Applicant to obtain such statements directly from the relevant bank/s.
(4) If the provision of any of this information is likely to incriminate the Respondent, he may be entitled to refuse to provide it, but is recommended to take legal advice before refusing to provide the information. Wrongful refusal to provide the information is contempt of court and may render the Respondent liable to be imprisoned, fined or have his assets seized.
11. By 4pm UK time on 13 July 2016 the Respondent must swear and serve on the Claimant's solicitors an affidavit setting out the above information, save for the information referred to in paragraph 10(3).
12(1)This order does not prohibit Guy Brooke from spending £1,000 a week towards his ordinary living expenses and also a reasonable sum on legal advice and representation, save that no sums may be spent using the Claim Proceeds. Before spending any money Guy Brooke must tell the Claimant's legal representatives where the money is to come from."
The Contempt allegations
"3. Mr Guy Brooke is in contempt of Court because he has failed to the best of his ability to cause or procure Cable Plus BV to make a payment of €3,801,339.15 or any payment to the Court Funds Office by 3rd May 2016 or at all, in breach of paragraph 4 of the order of Phillips J dated 29th April 2016 ('the Phillips J Order'). In particular:
a. [Paragraphs 2, 3 and 4 of the Phillips J Order were set out]
b. In an affidavit sworn on 21st April 2016, Mr Guy Brooke:
i. Swore that the Claim Proceeds comprised €3,801,339.15 and were being held by Cable Plus BV in account number 5000596021000978 at the United International Bank N.V. Landhuis Joonchi II, Kaya, Richard J Beaujon z/n, PO Box 152, Willemstad, Curacao (paragraphs 15 and 16).
ii. Swore that he is the sole shareholder in Cable Plus BV and was authorised to swear an affidavit on its behalf (paragraph 1). All three Respondents had been ordered to swear affidavits by paragraph 8 of an order of Teare J dated 15th April 2016.
iii. Offered an undertaking on behalf of himself and Cable Plus BV to preserve the Claim Proceeds in the bank account in Curacao.
c. Mr Guy Brooke is, and is on his own case, the controlling mind of Cable Plus BV.
d. Cable Plus BV failed to transfer any funds to the Court Funds Office by 3rd May 2016. To the best of Therium's knowledge, as at the date of this application Cable Plus BV has not transferred any funds to the Court Funds Office.
e. Therium's solicitors have corresponded with Mr Guy Brooke and have spoken to him in order to ascertain why no transfer has taken place and to seek detail and evidence as to what steps he has taken to comply with his obligations under the Phillips J Order. He has failed to provide any substantive explanation as to why no transfer has been made and has failed to provide any evidence (beyond assertion) of the steps he has taken.
f. Therium's solicitors offered to consent to a variation of the Phillips J Order to allow for payment to their client account (to be held to the order of the court) instead of payment into Court to assist Mr Guy Brooke if he was facing any practical difficulties in making payment to the Court Funds Account. Mr Guy Brooke failed to respond to this offer.
g. Whilst Mr Guy Brooke claims to have instructed Cable Plus BV's corporate director ('UIT') to make the transfer, in fact he has given it no such instructions.
h. Mr Guy Brooke is clearly able to act on Cable Plus BV's behalf since he purported to offer an undertaking on its behalf, he swore an affidavit on its behalf, he is the sole shareholder, he was described by his own counsel as Cable Plus BV's controlling mind and the chairman of UIT has stated that Mr Brooke has the authority to direct it to make the transfer simply by sending it an e-mail instructing it to do so. Mr Brooke has failed to provide any explanation as to why no transfer has been made despite being reminded of the need to comply with the Phillips J Order on 3rd May, 4th May, 5th May, 6th May and 10th May and has failed to provide any evidence (beyond assertion) as to what steps be has taken in seeking to comply with the order.
i. Mr Brooke has failed and is continuing to fail to act to the best of his ability to cause or procure the transfer in failing to:
i. Instruct UIT to make the transfer before 3rd May 2016 or at all.
ii. Ensure that the postal address he provided to the Court Funds Office was an address or mailbox to which he would have ready immediate access on a daily basis until such time as the transfer was made. Instead, he provided the Court Funds Office with the address of the mailbox in Taunton he provided in his affidavit in respect of which he had given instructions that post should must not be signed for. Moreover, and in any event, he left the country and so was not able to access any post sent to that mailbox.
iii. Obtain details of the Euro account from the Court Funds Office by telephone or e-mail and send those details to UIT.
iv. Contact UIT regularly (at least on every working day) by telephone and by e-mail to direct that the transfer be made and to ascertain whether the transfer had been made and, if not, why it had not been made and to ascertain what steps were necessary to ensure that the transfer could and would be made. It is clear that he has not done this, since he told Therium's solicitor at the telephone on 5th May 2016 that he did not know what was happening and has failed to provide any substantive update whatsoever since 3rd May 2016. If he had contacted UIT regularly and had received information that there were practical problems with the payment being made electronically he would have taken steps to resolve those problems or he would have directed that payment must be made by banker's draft. Alternatively he would have responded to and agreed to Therium's offer to vary Phillips J's order by consent to provide for payment to Harcus Sinclair LLP's client account to be held to the order of the court, or would have suggested an alternative variation to the order to resolve any practical difficulties (e.g. payment to another secure bank account in the jurisdiction). Instead, he has simply ignored this offer.
v. If he was unable to obtain satisfactory responses from UIT, as sole shareholder of Cable Plus BV (on his case) he should have taken steps to procure its removal as a director and appointed himself as director or appointed an alternative director in order to procure the transfer.
4. Mr Guy Brooke is in contempt of Court because he has disposed of or dealt with the Claim Proceeds in breach of paragraph 6(1) of the order of Teare J dated 15th April 2016 ('the Teare J Order') and/or paragraph 5(1) of the order of Walker J dated 22nd April 2016. In particular:
a. [Paragraph 6(1) of the Teare J Order was set out]
b. [Paragraph 5(1) of the Walker J Order was set out]
c. In an affidavit sworn on 21st April 2016, Mr Guy Brooke:
i. Swore in paragraphs 15 and 16 that the Claim Proceeds comprised €3,801,339.15 and were being held by Cable Plus BV in account number 5000596021000978 at the United International Bank N.V. Landhuis Joonchi II, Kaya, Richard J Beaujon z/n, PO Box 152, Willemstad, Curacao ('the Curaçao Account').
ii. Swore that he is the sole shareholder in Cable Plus BV and was authorised to swear an affidavit on its behalf (paragraph 1). All three Respondents had been ordered to swear affidavits by paragraph 8 of an order of Teare J dated 15th April 2016.
iii. Offered an undertaking on behalf of himself and Cable Plus BV to preserve the Claim Proceeds in the bank account in Curacao.
d. Mr Guy Brooke is the controlling mind of Cable Plus, as his and Cable Plus's own counsel accepted in his skeleton argument for the hearing before Walker J on 22nd April 2016 (para 8).
e. As of 1st July 2016, the Curacao Account contains only €147,292.05, as stated in information produced by United International Bank N.V. on that date in accordance with an order of the Curaçao Courts.
f. On a date unknown to Therium between 21st April 2016 and 1st July 2016, €3,654,047.10 of the Claim Proceeds were removed from the Curaçao Account, in breach of paragraph 6(1) of the Teare J Order and/or paragraph 5(1) of the Walker J Order (depending on the date or dates on which the monies were removed).
g. As the sole shareholder and controlling mind of Cable Plus, it is to be inferred that Mr Guy Brooke directly or indirectly instructed or requested that the transfer or transfers set out in paragraph 4(f) above be effected. Accordingly, he knowingly breached paragraph 6(1) of the Teare J Order and/or paragraph 5(1) of the Walker J Order (depending on the date or dates on which the monies were removed) by disposing of or dealing with €3,654,047.10 of the Claim Proceeds.
5. Mr Guy Brooke is in contempt of Court because he knowingly assisted and/or caused and/or procured Cable Plus to breach paragraph 6(1) of the Teare J Order and/or paragraph 5(1) of the order of Walker J dated 22nd April 2016. In particular:
[paragraphs a. to f. were the same as paragraph 4]
g. As the sole shareholder and controlling mind of Cable Plus, it is to be inferred that Mr Guy Brooke directly or indirectly instructed or requested that the transfer or transfers set out in paragraph 4(f) above be effected. Accordingly, he assisted Cable Plus to breach paragraph 6(1) of the Teare J Order and/or paragraph 5(1) of the Walker J Order (depending on the date or dates on which the monies were removed) by instructing or requesting it to dispose of or deal with €3,654,047.10 of the Claim Proceeds, without which instruction or request it would not have disposed of or dealt with those monies in breach of the order(s).
6. Mr Guy Brooke is in contempt of Court because he failed to comply with paragraphs 6, 10, 11 and 12 of the order of HHJ Waksman QC dated 5th July 2016 ('the HHJ Waksman QC Order') or with paragraphs 7(1) and 8 of the Teare J Order. In particular:
a. [Paragraphs 6, 10, 11 and 12(1) of the HHJ Waksman QC Order were set out]
b. [Paragraphs 7 and 8 of the Teare J Order were set out]
c. Mr Guy Brooke breached paragraphs 10(1) and 10(2) of the HHJ Waksman QC Order in that he failed to provide any information whatsoever by 4pm UK time on 8th July 2016.
d. Mr Guy Brooke breached paragraphs 10(1) and ii of the HHJ Waksman QC Order by failing to the best of his ability to inform Therium's solicitors of all of his assets worldwide either informally by 4pm on 8th July 2016 or at all or in his affidavit. He failed to provide any details of his assets save for asserting that this only assets were two bank accounts at NatWest (paragraph 5 of his affidavit).
This is a breach of paragraphs 10(1) and 11 because:
i He failed to give any information as to the contents of those bank accounts.
ii. He failed to disclose his shareholding in Cable Plus, which is plainly an asset within the meaning of paragraph 7 of the order.
iii. It is to be inferred that he has other assets that he has failed to disclose since he has, since the order was made, continued to instruct counsel to act for him in England including to attend a hearing on 15th July 2016 and he must have incurred living expenses since the order was made. These payments and expenses have not been made using monies in the NatWest accounts, since on his own evidence Mr Brooke has been unable to draw any funds from those accounts.
e. Mr Guy Brooke breached paragraphs 7(1) and 8 of the Teare J Order by failing, to the best of his ability and after making all reasonable inquiries, to inform Therium's solicitors of full details of the location of the Claim Proceeds, including any bank accounts where the Claim Proceeds were held, within 60 hours of service of that order or in an affidavit within 4 working days of service of the order or at all. In an e-mail dated 18th April 2016 Mr Brooke stated that the entirety of the Claim Proceeds were being held by Cable Plus in a specific bank account in Curaçao. He confirmed this information in an affidavit sworn on 21st April 2016. In fact, £14,211.96 of the Claim Proceeds were transferred by Cable Plus to Mr Brooke's personal bank account on 9th December 2015. Mr Brooke failed, in breach of the Teare J Order, to inform Therium's solicitors of the location of this part of the Claim Proceeds and to swear an affidavit confirming the location of this part of the Claim Proceeds. Further, in breach of the Teare J Order, he stated that the Claim Proceeds of €3,801,339.15 were in the specified bank account in Curaçao when he knew that £14,211.96 of the Claim Proceeds were not in that bank account but had been transferred to him.
f. Mr Guy Brooke breached paragraphs 10(2) and 11 of the HHJ Waksman QC Order by failing, to the best of his ability and after making all reasonable inquiries, to inform Therium's solicitors of the location, nature and value of all assets which represent in whole or in part or are derived from the Claim Proceeds, either in writing by 8th July 2016 or at all or in his affidavit. Mr Brooke stated in his affidavit that he has 'no idea' where the Claim Proceeds are and stated that be has 'tried repeatedly to contact Gregory Elias to ascertain their whereabouts, but without success' (paragraph 7 of his affidavit). This is a breach of paragraphs 10(2) and 11 because:
i. It is inconceivable that Mr Brooke does not know (or is unable to find out) the location of the Claim Proceeds. He is the sole shareholder of Cable Plus which was formed solely to run the underlying Dutch litigation, ultimately for his benefit. It is his creature and now exists solely to hold the Claim Proceeds, albeit that it should be holding them on trust for Therium.
ii. Mr Brooke has plainly failed to act to the best of his ability and has failed to make all reasonable inquiries to ascertain the location of the Claim Proceeds. He asserts that he has repeatedly tried to contact Mr Elias but gives no details of these attempts and exhibits no correspondence to him. He has previously been able to contact Mr Elias and, indeed, relies on telephone calls and e-mails to Mr Elias in his current evidence submitted in defence of the committal application. It is inconceivable that he had, for over a week, been unable to contact Mr Elias or anyone in Curaçao who might be able to tell him where the Claim Proceeds have been transferred to.
g. Mr Brooke stated in his affidavit that, as far as he was aware, the Claim Proceeds had been in the bank account shown in the settlement agreement since December 2015 (paragraph 7). In fact, £14,211.96 of the Claim Proceeds were transferred by Cable Plus to Mr Brooke's personal bank account on 9th December 2015. Mr Brooke failed, in breach of the HHJ Waksman QC Order, to inform Therium's solicitors of the location, nature and value of any assets representing in whole or in part this part of the Claim Proceeds and to swear an affidavit confirming the same. Further, in breach of the HHJ Waksman J[sic] Order, he swore that he did not know where any part of the Claim Proceeds were (paragraph 7) when in fact he knew that £14,211.96 of the Claim Proceeds had been transferred to him.
h. Mr Guy Brooke breached paragraphs 10(3) and 11 of the HHJ Waksman QC Order by failing to act to the best of his ability to provide Therium with any bank statements or debit or credit card statements by 4pm UK time on 13th July 2016 or at all. Having failed to act to the best of his ability to provide those statements, he then also failed to provide Therium by 4pm UK time on 14th July 2016 or at all with a letter of authority entitling it to obtain the statements directly from the relevant bank(s), again in breach of paragraph 10(3) of the HHJ Waksman QC Order.
i. Mr Guy Brooke breached paragraph 6 of the HHJ Waksman QC Order by spending money on living expenses and legal fees without informing Therium's solicitors as required by paragraph 12(1) of the order. It is to be inferred that he breached paragraph 6 because he instructed counsel in England to continue to act for him since the order including to attend a hearing 15th July 2016 and he must have incurred living expenses since the order was made."
(1) the relevant order contained a penal notice and was served on Mr Brooke; this was not in issue;
(2) Mr Brooke knew of the terms of the relevant order; this too was not in issue;
(3) Mr Brooke acted or failed to act in a manner which involved a breach by him of the relevant order; or, in the case of paragraph 5 of the application notice, that Cable Plus acted or failed to act in a manner which involved a breach by it of the relevant order and Mr Brooke has assisted and/or caused and/or procured such breach by Cable Plus;
(4) Mr Brooke knew of the facts which make his conduct a breach (or in the case of paragraph 5 of the application notice, knew of the facts which made Cable Plus' conduct a breach and knew of the facts which rendered his own conduct such as to assist and/or cause and/or procure the breach by Cable Plus).
"51. The error of law alleged is that the judge failed to apply the correct criminal standard of proof because he sometimes adopted the language of a civil trial, saying that something was "improbable", or "likely", or words to that effect. It is true that the judge so expressed himself on occasions. However, the judge overwhelmingly used the language of the criminal standard (of being sure, or of rejecting the possibility that something may be as suggested), and he uniformly did so when reaching his conclusions on any essential plank of the bank's case. Examples of that are so numerous as to be unnecessary to exemplify. Moreover, it is not true that every single aspect of a criminal case has to be proved to the criminal standard, although of course the elements of the offence must be.
52 It is, however, the essence of a successful case of circumstantial evidence that the whole is stronger than individual parts. It becomes a net from which there is no escape. That is why a jury is often directed to avoid piecemeal consideration of a circumstantial case: R v Hillier (2007) 233 ALR 634, cited in Archbold's Criminal Pleading, Evidence and Practice, 2012 ed, para 10-3. Or, as Lord Simon of Glaisdale put it in R v Kilbourne  AC 729, 758, "Circumstantial evidence. . . works by cumulatively, in geometrical progression, eliminating other possibilities". The matter is well put by Dawson J in Shepherd v The Queen (1990) 170 CLR 573, 579—580 (but also passim):
"the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact—every piece of evidence—relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately."
53. I have no doubt that the judge, whose language so often reminded him of the appropriate criminal standard of proof, remained true to his self-direction. It is simply that, in a reasoned judgment which covers so much ground and so many factual issues, and where each dispute is covered by analysis, the judge is often forced into a position where, unlike the jury, he has to express a view as to individual pieces of evidence separately. However, ultimately he had to consider the charge against Mr Ablyazov cumulatively, and he was sure that the three alleged contempts were proved and that they were deliberate."
The alleged contempts
Paragraph 3: failure by Mr Brooke to the best of his ability to cause or procure Cable Plus to make a payment of €3,801,339.15 or any payment to the Court Funds Office by 3 May 2016 or at all, in breach of paragraph 4 of the order of Phillips J dated 29 April 2016
(1) His conduct must be judged against the background of his advanced years and ill health. He is 78 and had a fall on 16 January 2016 in which he fractured 5 ribs one of which punctured a lung. He was in intensive care for 50 days and in hospitals in the south west of England for two months, from which he was only released on 14 March 2016. There is a consultant's letter dated 15 February 2016 which confirms the seriousness of his condition arising from the effect of the fall on his existing chronic lung disease. After his release he needed "3-4 weeks of rehabilitation before [he] would have been fit enough to deal with this matter". By the end of April he was staying with friends in Somerset, but had been suffering from several bouts of pneumonia since his discharge from hospital. He then received advice that "the stress of the litigation was not helping and that, if possible he should travel overseas for a break of 10 days or so" which he did on 5 May, planning to be away until 15 May but in fact returning to the UK on 12 May. He was then "advised that he should try to find [himself] some intensive rehabilitation to assist [his] walking and breathing" and was by the time of his second affidavit (8 June 2016) attending a residential rehabilitation course at an unidentified clinic in Europe. It is to be inferred from the address of the notary before whom this was sworn that he was near Hyeres in the south of France, and this was where he was examined by Therium's appointed examiner, Dr Alliot, on 23 June 2016.
(2) Mr Brooke received the Order of Phillips J by email on the afternoon of the day it was made, Friday 29 April 2016. He "immediately attempted to contact Gregory Elias" but was "unable to make contact that day".
(3) Monday 2 May 2016 was a bank holiday in Curacao, but Mr Brooke did manage to make contact with Mr Elias that day and asked him to ensure that Cable Plus complied with the order.
(4) He confirmed his request in a letter attached to an email to Mr Elias at 2.36 pm BST on 3 May 2016 which was exhibited to his second affidavit. "Nothing Mr Elias told me in the several conversations I had with him had led me to believe that he would not be complying with the Order and my requests to transfer the money".
(5) He then went abroad on 5 May 2016, where on 10 May 2016 he received a copy of a letter from Mr Parkes, Therium's solicitor, threatening contempt proceedings for failure to comply with paragraph 4 of Phillips J's order. He returned to England on 12 May 2016 because he was determined to find out from Mr Elias why the latter had not transferred the money but being away had made it harder to communicate with him. He tried to contact Mr Elias immediately on his return but was unable to do so.
(6) Having seen Mr Parkes' first affidavit on 19 May 2016, in which Mr Parkes recorded that Mr Elias had told him that he, Mr Elias, had received no instructions from Mr Brooke to transfer the money (see below), Mr Brooke sent another letter to Mr Elias by email on 24 May 2016 which he exhibited, asking him to transfer the funds into court. Mr Brooke received a response from Mr Elias, also exhibited, indicating that Mr Elias' duties under Curacao law as director were to look after the best interests of the company and not exclusively those of the shareholder.
(7) This prompted Mr Brooke to seek advice on Curacao law. Mr Brooke exhibited advice from Mr Jaap Maris of BZSE, a Curacao lawyer, which confirmed the position under Curacao law that where a board of directors had refused to comply with a request of a shareholder on the grounds that it was contrary to the interests of the company, that was a decision for the board to take exercising its own judgment as to the interests of the company; and that a shareholder could not get round it by appointing a new board because the new board would also be bound to act in the best interests of the company if that conflicted with the will of the shareholders. This Curacao law advice was not controversial as a matter of general principle, but it did not address whether there was any reason why in this case Mr Elias should decline to follow the wishes of the sole shareholder if Mr Brooke had instructed him to make the transfer.
(1) On 12 May 2016 he telephoned Mr Elias. He exhibited an attendance note of the call, in which:
(a) Mr Elias said that, contrary to Mr Brooke's assertions, he and UIT had received no instructions from Mr Brooke to effect any transfer;
(b) Mr Elias said that UIT had received the Phillips J Order, but in the absence of instructions from Mr Brooke he didn't know what to do;
(c) Mr Elias asked Mr Parkes to send an email setting out the need for Mr Brooke to give instructions for the transfer so that Mr Elias could forward the email to Mr Brooke.
(2) Mr Parkes sent such an email and had a further conversation with Mr Elias the following day, 13 May 2016. Again an attendance note was exhibited. In that conversation Mr Elias told him that:
(a) Mr Brooke could authorise the transfer on his own (no other parties needed to be involved);
(b) Mr Brooke could give those instructions by email;
(c) The transfer would take two "value dates" which Mr Parkes took to mean two working days.
(3) Mr Parkes interpreted Mr Elias' answers as being premised on the money remaining in the account, although Mr Elias refused to confirm that that was so on the grounds that the information was confidential to the account holder.
(1) UIT is one of the largest corporate service providers in Curacao, and is very reputable, as is Mr Elias its managing director. Mr Elias has a highly successful professional reputation and owns the United International Bank which is a sister company. He knows of no grounds to doubt Mr Elias' honesty or integrity.
(2) Although it is possible as a matter of strict law for a director to refuse to follow a request by a sole shareholder, in practice it is extremely rare and happens only if there is a clear conflict between the shareholder's direction and the company's interests, for example because performance of the request would be illegal or make the company insolvent. Curacao is a jurisdiction in which large numbers of companies are established for shareholders who live outside the country, often with a single corporate director. No corporate director would remain in business in Curacao for long if he refused proper requests from sole shareholders: he would simply be replaced as a corporate director.
(3) It would ordinarily be regarded as in a company's best interests to comply with a foreign court order to preserve funds to which its creditor was making a claim pending arbitration of the dispute.
(4) It is inconceivable that a corporate director such as Mr Elias would decide that it was contrary to the interests of Cable Plus to make a payment which a foreign court had ordered it to pay and which the sole shareholder had instructed it to pay which was merely an order preserving funds pending resolution of the arbitration.
(5) If in such circumstances a director were to refuse to make the transfer, he would provide the shareholder with clear reasons for his refusal and an explanation of why in his opinion it was not in the best interests of the company. He would be under an obligation to do so as a matter of Curacao law which requires that the management, properly carrying out its functions, should communicate its decisions and reasons to the sole shareholder.
(6) He had seen the attendance note of the conversation in which Mr Elias had told Mr Parkes that all that would be required would be emailed instructions from Mr Brooke. That accorded entirely with what he would expect to be required.
(7) If for some unexplained reason UIT did refuse Mr Brooke's instructions to effect the transfer, it would be simple for Mr Brooke as sole shareholder to replace UIT and install a director who would accept that it was in the interests of the company to comply with his instruction.
(1) The starting point is that Mr Brooke can be seen to have been dishonest and/or misleading in a number of respects throughout the history of the dispute. He secretly arranged for the Claim Proceeds to be sent to Curacao even though he knew that he was not entitled to do so; his email of 23 November 2015 was misleading as to the progress of negotiations and status of the settlement agreement; he persistently failed, despite repeated requests, to tell Therium what had happened to the Claim Proceeds until ordered to do so by Teare J (this evasion both preceded and post-dated the period of two months from 16 January to 14 March 2016 when his medical condition may genuinely have rendered him unable to deal with the matter). In his first affidavit he gave as his address what purported to be a residential address in Taunton, but turned out to be a rented mailbox whose operator had been specifically instructed by Mr Brooke not to sign for any letters sent there. His second affidavit gave his address as "no fixed abode". His third "affidavit" was not sworn. He has consistently declined, without good reason, to reveal his whereabouts. I am therefore cautious of attaching weight to Mr Brooke's uncorroborated assertions especially where they are contrary to the inherent probabilities.
(2) The assertion of an attempt to contact Mr Elias on Friday 29 April 2016 is no more than that. Mr Brooke does not say how he sought to make contact or when; nor does he explain what the difficulty was in making contact. There would have been a considerable part of the working day in Curacao within which to have done so. There is no documentary evidence of any such attempt. Mr Brooke was aware that Mr Elias had a copy of the order and had been forwarded the relevant forms (by Mr Parkes) to enable the account to be opened at the Court Funds Office. All that was required was a brief email of instruction. There is nothing in Mr Brooke's age or health, when he was staying with friends in Somerset, which would have made a short email difficult. He did not leave the country, on his account, until towards the end of the following week, and then apparently more because of the stress of the litigation than his underlying physical health.
(3) The assertion that he made contact with Mr Elias on 2 May 2016 is equally unparticularised and unsupported. It is not said how he did so and there is no corroborative documentary support. Moreover this is the only specific occasion identified on which Mr Brooke asserts that he spoke to Mr Elias. This is inconsistent with his reference to "several" conversations in which Mr Elias is supposed to have said nothing to lead Mr Brooke to believe that he would not be transferring the money. Therium's solicitors asked in correspondence for a summary of the content of those conversations, which Mr Brooke through his counsel refused to provide. The absence of any detail and the deliberate decision to refuse details and avoid cross examination leads to the inference that Mr Brooke has no confidence that his assertion would be believed against Mr Elias' clear statement to the contrary.
(4) The so called email of 2.36 pm on 3 May 2016 said to be exhibited to Mr Brooke's second affidavit in fact comprises two hard copy documents. One appears to be an email dated 3 June 2016 from Mr Brooke to his counsel, Mr Williams, which states in its text that at 2.36 pm on 3 May 2016 Mr Brooke wrote to Mr Elias "please see attached". It is not clear from the format of the document itself whether it is, as was submitted on Mr Brooke's behalf, the forwarding to Mr Williams of an email actually sent to Mr Elias. The second document is dated 2 May 2016 and addressed to Mr Elias purporting to confirm a request made in a conversation earlier that day to ensure that Cable Plus complied with the order. It ends by seeking confirmation of receipt of "this letter/email" by return. Therium's solicitors asked in correspondence for electronic copies of the two documents, which Mr Brooke has refused to provide. There has been no explanation from Mr Brooke why if the "attached" letter was drafted on 2 May following the phone call, as is implicit in its dating and content, it was not sent until the following afternoon. There is no response from Mr Elias exhibited or attested to, as there surely would have been from a professional receiving such a request, especially given the last line of the request which sought a specific confirmation of receipt. Mr Brooke's refusal to attend the hearing to explain these anomalies again gives rise to an adverse inference.
(5) On Friday 6 May 2016 Mr Williams had a conversation with Mr Parkes in which Mr Williams said he had been assured by Mr Brooke that he would telephone Cable Plus as soon as its office opened to find out what was happening and would phone Mr Williams to update him; and that Mr Williams would in turn update Mr Parkes that Friday afternoon or on Monday 9 May 2016. Mr Brooke does not purport to have made any such call and the promised updating of Mr Parkes did not occur, save that on 9 May 2016 Mr Williams told him that Mr Brooke would not be in a position to update Therium until 11 May 2016. This is all of a piece with Mr Brooke's conduct since the settlement agreement in November 2015 of failing to keep Therium properly informed, motivated by a desire to keep from Therium the Claim Proceeds.
(6) The assertion that Mr Brooke again attempted to contact Mr Elias without success on 12 May 2016 is once more unparticularised and unsupported by documentary evidence. There is no explanation of how or why he was unable to get hold of Mr Elias. Nor is there any explanation as to why it was not until 24 May 2016 that on his account he next tried to contact Mr Elias.
(7) The purported exchange on 24 May 2016 and 6 June 2016 once again raises more questions than it answers. As to the 24 May "instruction", what was exhibited were two hard copy documents. One was an email from Mr Brooke to Mr Williams purporting to forward an email sent by Mr Brooke to Mr Elias on 24 May saying "please read attached document. Looking forward to hearing from you". The second was a hard copy document in the form of an email addressed to Mr Elias, also bearing the date 24 May 2016, stating that he had previously requested compliance with the order by transfer of the funds, repeating the request for transfer "immediately", and seeking confirmation by return email "that you have complied with my request and why the funds have not been transferred." The terms of this document are difficult to square with what would be expected of someone who is accused of being in contempt of court, has made a previous and timely request for compliance, and has learned that Mr Elias is denying any such request. On Mr Brooke's own account he had returned from abroad early because he was very concerned about being committed to prison for contempt and determined to find out why Mr Elias had not transferred the money. Yet there is no real complaint or concern expressed about non-compliance, nor any complaint or concern about what on Mr Brooke's case was a false denial by Mr Elias of ever having received instructions to effect the transfer. Therium's solicitors asked in correspondence for electronic copies of the two documents, which Mr Brooke has refused to provide. It is therefore impossible to have confidence that the 24 May document was indeed sent as a request to Mr Elias.
(8) Similar problems surround Mr Elias' purported response. The document exhibited is an email from Mr Brooke to Mr Williams purporting to forward an email sent by Mr Elias on 6 June 2016. Its content and format is as follows:
"Dear Mr Brooke,
Thank you for this note.
Whilst we appreciate that you are the shareholder, we as the managing director have to adhere to our duties and obligations stipulated under Curacao corporate rules and regulations.
One of them being to look after the best interest of the company. And not exclusively or partially to those of the shareholder or shareholders
Whatever the case may be.
We look forward to hearing from you.
This does not appear to be responsive to the contents of the purported 24 May request. The subject line is different. It starts by thanking Mr Brooke for "this note" which is not an apt description of the 24 May document. It ends "we look forward to hearing from you", which again makes no sense as a response to the 24 May document. Further, it is highly improbable that Mr Elias would not have responded to something in the terms of the 24 May request for almost a fortnight, against the background of a foreign court order of which Mr Brooke was alleged to be in contempt, especially since it asked for a response by return email. Mr Brooke proffers no explanation for the delay. The 6 June document is general in tone, rather than an explanation for non-compliance with a specific transfer request. As such it would be entirely contrary to Curacao practice, as explained in Mr Van Der Heuvel's evidence, which would have involved a clear explanation of the reasons for declining to comply with the request of the sole shareholder.
(9) Moreover Therium's solicitors asked for confirmation that there were no other communications between Mr Brooke and Mr Elias which have not been referred to or disclosed. Mr Brooke refused to answer the request. I can have no confidence, therefore, that even if an email was sent in the terms of the 24 May document, it was not rendered nugatory by some ancillary, contemporaneous or subsequent communication to different effect. On the contrary, I am quite satisfied that it was not an unequivocal request for transfer, either because it was not sent at all, or because there were other communications which qualified or retracted it.
Paragraphs 4 & 5: dealing with and/or disposal of the Claim Proceeds in breach of paragraph 6(1) of the order of Teare J and paragraph 5(1) of the order of Walker J.
Paragraph 6(c): breach of paragraphs 10(1) and 10(2) of the WFO in failing to provide any information whatsoever by 4pm UK time on 8th July 2016.
Paragraph 6(d): breach of paragraphs 10(1) and 10(2) of the WFO in failing to make full disclosure of his worldwide assets to the best of his ability;
Paragraphs 6(e) and (g): breach of the disclosure provisions in Teare J's order and the WFO as to the whereabouts of the Claim Proceeds because £14,211.96 had been transferred into Mr Brooke's personal NatWest account on 9 December 2016.
Paragraph 6(f): breach of the WFO in failing to disclose the whereabouts of the assets derived from the Claims Proceeds.
Paragraph 6(h): Breach of paragraph 10(3) of the WFO in failing to provide bank and card statements or a letter of authority
Paragraph 6(i): breach of paragraph 12(1) of the WFO in spending money on living and legal expenses without informing Therium's solicitors;