![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Chancery Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Brittain v Choppen [2025] EWHC 476 (Ch) (03 March 2025) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2025/476.html Cite as: [2025] EWHC 476 (Ch) |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Help]
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANIES LIST (CHD)
IN THE MATTER OF D.W.B. WASTE MANAGEMENT LIMITED (IN LIQUIDATION)
AND IN THE MATTER OF THE INSOLVENCY ACT 1986
7 The Rolls Building Fetter Lane London EC4A 1NL |
||
B e f o r e :
____________________
LOUISE MARY BRITTAIN (IN HER CAPACITY AS LIQUIDATOR OF D.W.B. WASTE MANAGEMENT LIMITED (IN LIQUIDATION) |
Applicant |
|
- and – |
||
MR DAVID JOHN ![]() | Respondent |
____________________
Ms Kate Gardiner (instructed through the Advocate scheme) appeared for the Respondent
Hearing date: 4 February 2025
____________________
Crown Copyright ©
ICC Judge Barber
The Application
Under-declaration of VAT
A declaration that the Company's under-declaration of VAT in sums totalling £251,437 plus a penalty of £118,195 and interest of £17,277.09 pursuant to HMRC's assessment was the result of a breach of the Respondent's duties to the Company under the Companies Act 2006 ('CA 2006');
An order pursuant to s212(3) Insolvency Act 1986 ('IA 1986') that the Respondent repay such sums to the Company together with interest;
Unlawful payments to the Respondent
A declaration that the Respondent is in breach of his CA 2006 duties to the Company by causing the Company to make payment to himself of £69,000 (whether as unlawful dividends or otherwise) and/or that by receiving such sums the Respondent has misapplied and/or become accountable for money of the Company and/or that such payments amounted to transactions at an undervalue pursuant to s 238 IA 1986;
An order for repayment of the sum of £69,000 together with interest;
Unlawful cash withdrawals
A declaration that in causing the Company to make cash withdrawals totalling £286,180 the Respondent was in breach of his CA 2006 duties and/or that by making the withdrawals the Respondent has misapplied and/or become accountable for money of the Company and/or that such withdrawals amounted to transactions at an undervalue pursuant to section 238 IA 1986;
An order pursuant to s 212(3) and/or 238 IA 1986 that the Respondent repay the sum of £286,180 to the Company together with interest.
The Company
The Respondent
Kelly Bond
Steve Rozario
'it has not been possible to determine: The circumstances [in] which and the reasons for the cash withdrawals totalling £377,500 between March 2019 and 10 October 2019 and payments totalling £513,500 (net) made to [Mr Rozario] between 23 April 2019 and 11 October 2019…'
The Application: procedural history
(1) The Respondent was diagnosed with severe depression and generalised anxiety disorder in 2020. He had started on antidepressants (Setraline) at that time and the dose had gradually increased, with Mirtazapine added.
(2) In 2020, the Respondent was also diagnosed with Mild Cognitive Impairment. This causes him to lose his train of thought and difficulty in remembering things.
(3) The Respondent had presented worsening headaches in 2021. He was investigated but no underlying cause of concern had been identified. He was on medication to try to reduce headache severity and intensity.
'I DavidChoppen
was made director of DWB Waste Management LTD, after Mr Kelly Bond former owner and director of said company, was incarcerated for five years for having an illegal firearm.
I was ask for the company to be put in my name, by Mr Stephen Anthony Rozario Mr Bonds silent partner. I was told he could not have it in his name as he had just been released from prison for a similar offence.
My roll in the company as head driver was to drive lorries and to organize the other drivers as per Mr Rozario's instructions.
I had no experience or knowledge of running a company, this was all done by Mr Rizario. Finding the work, Invoicing, Banking and general running of the company.
I was just a director on paper only.'
'I am writing this on behalf of DavidChoppen and I am his partner. Unfortunately as David has MCI [mild cognitive impairment] as previously stated his memory has declined to the extent that he can not remember the past and as the situation with DWB [the Company] was quite a few years ago this falls into this category. He has also been diagnosed with Osteoarthritis of the spine and owing to being in a lot of pain his mental health has declined also. As previously stated Steven Anthony Rozario ran the company so he would no a lot of the questions that need answering as David has no recall'
'As regards Mr Rozario's involvement, since my appointment as liquidator and in the carrying out of my duties, I have not come across any reference to Mr Rozario being involved, let alone being in day-to-day charge of the Company.'
'to let you no adam Smith Robert's how was representing me can no longer represent me due too other commitments and there I am waiting for Advocate to appoint another barrister'.
'As Mr Smith Roberts is no longer available to represent me I am waiting for Advocate to allocate a new barrister as I do not no what to do as I don't know what I am serpost to agree or not .. Advocate are not back to work till the 6th so I am hoping they can sort it asap as I have sent them a email and marked it urgent'.
'I refer to our telephone conversation of Friday 10 January 2025 in which you asked for an adjournment of the trial. This as you know is to take place from 4 February 2025. The basis for the adjournment is that you advise that your chosen counsel is not available who you had obtained via the Advocate system and they have told you that it could take another two weeks to know if they will allocate another to you.
Our client will not agree to the adjournment and you will need to apply to court to seek such an order. Our client does not consider that the failure to obtain counsel in the circumstances you outline is a sufficient reason for an adjournment. If it were adjourned then it is likely that the case would not be heard until the end of 2025 at the earliest.
We also remind you that you [sic] cases are often heard with litigants acting in person and there is no reason of which our client is aware why you could not act in person in any event. The courts are highly experienced in dealing with litigants in person.'
'Need time for a new barrister to be assigned from Advocate as I suffer from MCI as well as Anxiety and depression so I cannot represent myself.
Supply evidence as to my state of mental health'
'Memory and concentration difficulties, he can struggle to think conceptually with numbers and can often lose his train of thought. David is supported by his partner with activities of daily living…
Memory and concentration difficulties impacts on his communications abilities. Anxiety and depression can cause avoidance..
Ongoing reviews with the Memory Assessment Service (David is high risk of conversion). David has had talking therapies, however there was little progress in symptom improvement, due to cognitive impairment. Due to start second lot of therapy. David is also on maximum dose of anti-depressants, with little improvement and awaiting medication advice from psychiatrist.'
Adjournment: principles
'[8] …. It seems to me that the starting point is the overriding objective (CPR Part 1.1), the notes in the White Book at paragraph 3.1.3, and the decision of the Court of Appeal in Boyd and Hutchinson (A Firm) v Foenander [2003] EWCA Civ 1516. Thus, the court must ensure that the parties are on an equal footing; that the case - in particular, here, the quantum trial - is dealt with proportionately, expeditiously and fairly; and that an appropriate share of the courts resources is allotted, taking into account the need to allot resources to other cases.
[9] More particularly, as it seems to me, a court when considering a contested application at the 11th hour to adjourn the trial, should have specific regard to:
a) The parties' conduct and the reason for the delays;
b) The extent to which the consequences of the delays can be overcome before the trial;
c) The extent to which a fair trial may have been jeopardised by the delays;
d) Specific matters affecting the trial, such as illness of a critical witness and the like;
e) The consequences of an adjournment for the claimant, the defendant, and the court.'
56.1 The test is essentially whether a refusal of an adjournment will lead to an unfair trial [49(1)];
56.2 'Fairness involves fairness to both parties. But inconvenience to the other party (or other court users) is not a relevant countervailing factor and is usually not a reason to refuse an adjournment': [49(4)];
56.3 '[W]hat fairness requires will depend on all the circumstances of the case': [52].
'[32] …The decision whether to grant or to refuse an adjournment is a case management decision. It is to be exercised having regard to the "overriding objective" in CPR 1….each case must turn on its own facts (and in particular upon how late the application is made).
[33] Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently "medical" grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge. The decision must of course be a principled one. The Judge will want to have in mind CPR 1 and (to the degree appropriate) any relevant judicial guidance (such as that of Coulson J in Fitzroy or Neuberger in Fox v Graham ("Times" 3 Aug 2001 and Lexis). But the party who fails to attend either in person or through a representative to assist the judge in making that principled decision cannot complain too loudly if, in the exercise of the discretion, some factor might have been given greater weight.
…
[36]…[referring to the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial] … Such evidence should identify the medical attendant and give details of his familiarity with the party's medical condition (detailing all recent consultations), should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party's difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case).'
'Judges are often faced with late applications for adjournments by litigants in person on medical grounds. An adjournment is not simply there for the asking. While the court must recognise that litigants in person are not as used to the stresses of appearing in court as professional advocates, nevertheless something more than stress occasioned by the litigation will be needed to support an application for an adjournment. In cases where the applicant complains of stress-related illness, an adjournment is unlikely to serve any useful purpose because the stress will simply recur on an adjourned hearing.'
'Any adjournment causes extensive disruption and inconvenience and wastes huge amounts of costs'.
The Respondent's submissions
The Applicant's submissions
The Respondent's reply submissions
Discussion and conclusions
ICC Judge Barber