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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Mansard Mortgages 2007-2 PLC & Anor v Beyat Holdings Ltd & Ors [2021] EWHC 3355 (Ch) (13 December 2021) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2021/3355.html Cite as: [2021] EWHC 3355 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Rolls Building, Fetter Lane, London, EC4A 1NL |
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B e f o r e :
(sitting as a Judge of the High Court)
____________________
(1) ![]() ![]() (2) VISTRA CAPITAL MARKETS (IRELAND) LIMITED |
Claimants |
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- and - |
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(1) BEYAT HOLDINGS LIMITED (2) DIGITAL ASSET PARTNERS LIMITED (3) MICHAEL JOHNSON (4) USMAN AHMAD (5) ANNABEL WATSON (6) PETER MORROW |
Defendants |
____________________
The defendants did not appear and were not represented
Hearing date: 7 December 2021
____________________
Crown Copyright ©
HHJ Paul Matthews :
Introduction
Background events
The claim form
"The Claimants seek:
1. Declarations that:
a. The purported "Investor Notice and Direction" dated 1 September 2021 is invalid, of no effect and not authorised or accepted by the Issuer
b. The purported "Notice of a Board Meeting" dated 2 September 2021 was invalid, of no effect and not authorised by the First Claimant.
c. The purported "Signed minutes of board meeting" dated 2 September 2021 and the purported resolutions it contains, are invalid, of no effect and not authorised by the First Claimant.
d. The Second to Fourth Defendants are not and never have been directors of the First Claimant.
e. The only directors of the First Claimant are Julius Bozzino and Sunil Masson.
f. The purported "Consultancy Agreement" dated 3 September 2021 is invalid, of no effect and not authorised by the First Claimant.
2. Injunctions restraining the Defendants from (whether acting alone, or in combination with any other individual or entity):
a. Taking steps to appoint directors of the First Claimant;
b. Making or attempting to make (or cause, procure or permit any other person to make) any filing at Companies House in respect of the First Claimant;
c. Holding any person other than Julius Bozzino and Sunil Masson out as a director of the First Claimant;
d. Taking any steps to enforce the purported consultancy agreement;
e. Issuing or continuing (or causing or encouraging anyone else to issue or continue) any legal proceedings arising out of or relating to these proceedings and/or the affairs of the Claimants in any jurisdiction against Fieldfisher LLP, any solicitor in the firm of Fieldfisher LLP and Counsel for the Claimants, unless at least one of the Defendants has applied for and obtained permission from a High Court Judge to bring such proceedings (having given at least 14 days' notice to the proposed defendant(s) of any such application).
3. Injunctions restraining the Second to Fourth Defendants (including in those Defendants which are corporate persons, employees or agents) from (whether acting alone or in combination with any other individual or entity):
a. Holding themselves out as directors of the First Claimant or as having any authority to act on the First Claimant's behalf;
4. Costs."
"The defendant may attend the hearing of the claim but may not take part in the hearing unless the court gives permission."
The application to strike out the claim
Acknowledgments of service
"When the court receives the acknowledgment of service and any written evidence it will give directions as to the future management of the case".
She therefore invited the court to give directions as to the future management of the case by directing that the claim should continue as a Part 7 claim and give further appropriate directions, including the service of particulars of claim as an initial step.
The hearing of 7 December 2021
"(1) A defendant who wishes to –
(a) dispute the court's jurisdiction to try the claim; or
(b) argue that the court should not exercise its jurisdiction
may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.
(2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.
[… ]
(4) An application under this rule must –
(a) be made within 14 days after filing an acknowledgment of service; [… ]."
"(1) This Part deals with the procedure for filing an acknowledgment of service.
(2) Where the claimant uses the procedure set out in Part 8 (alternative procedure for claims) this Part applies subject to the modifications set out in rule 8.3.
[ … ]
"(1) The defendant must –
(a) file an acknowledgment of service in the relevant practice form not more than 14 days after service of the claim form; …
[ … ]"
"14. The first question which arises is whether the First Defendant can apply for an extension of time of nine days within which to mount the jurisdiction challenge without also seeking an extension of time for entering an acknowledgment of service. Rule 11(2) provides:
'A defendant who wishes to make such an application [to dispute the court's jurisdiction or argue that the court should not exercise its jurisdiction] must first file an acknowledgment of service in accordance with Part 10.'
15. On behalf of the First Defendant, Mr. Harding argued that an acknowledgment of service which complied with the formalities of Part 10 satisfied Rule 11(2), whether or not it had been served timeously. On behalf of the Claimants, Mr. Davies submitted that in order to qualify under Rule 11(2), an acknowledgment of service must comply in all respects with Part 10, and an acknowledgment of service which does not comply with the time provisions set out in Part 10 is not an acknowledgment of service in accordance with Part 10.
16. The Claimants' submissions are to be preferred on this question. The wording of Rule 11(2) is clear. The acknowledgment of service must be "in accordance with Part 10". There is no reason to treat that as requiring compliance with only some parts of Part 10 and not others.
17. If an acknowledgment of service is not served within time, then there must be some means by which a Claimant can have that acknowledgment of service treated as ineffective unless the Court grants an extension of time. The effect of the submissions advanced on behalf of the First Defendant by Mr. Harding was that if a defendant entered an acknowledgment of service, albeit out of time, that was sufficient to trigger the right to defend the claim, the right to challenge jurisdiction and the right to resist a judgment in default of acknowledgment of service. He was unable to point to any provision of the Rules under which a Claimant would be entitled to have the acknowledgment of service set aside for being out of time. That seems to me to point clearly towards a need on the part of the defendant to seek an extension of time if the acknowledgment of service is to be treated as effective for its main purposes, which are to enable the claim to be defended or to enable a challenge to jurisdiction to be advanced, and to prevent judgment being entered in default of acknowledgment of service.
18. I am fortified in that analysis by the judgment of Flaux J in Talos Capital Ltd. & Ors. v. JSC Investment Holdings XIV Ltd. [2014] EWHC 3977 (Comm) in which he had to consider an application for an extension of time both for acknowledgment of service and for time in which to mount a Part 11 jurisdiction challenge, in circumstances which are analogous to the present case. He treated an application for extension of time in relation to the acknowledgment of service as being necessary because otherwise the acknowledgment of service would be treated as a nullity and would be capable of being set aside as such: see in particular paras. 30, 33 and 44 of that judgment."
"(1) Where the defendant contends that the Part 8 procedure should not be used because –
(a) there is a substantial dispute of fact; and
(b) the use of the Part 8 procedure is not required or permitted by a rule or practice direction,
he must state his reasons when he files his acknowledgment of service.
[ … ]
(2) When the court receives the acknowledgment of service and any written evidence it will give directions as to the future management of the case."
"(j) decide the order in which issues are to be tried;
(k) exclude an issue from consideration; ... "
"20. In the present case Ms Cooke asks me to go further than Mr Males QC went [in Moloobhoy v. Kanani [2012] EWHC 1670 (Comm)] in two respects. Firstly, she asks me to hear these Part 8 proceedings, as distinct from a summary judgment application, and secondly she asks me to hear these proceedings ahead of any jurisdictional challenge, and not merely at the same time. I am satisfied that I have jurisdiction to do so. Four of the five Defendants have filed acknowledgments of service under CPR r. 8.3, thereby giving the court jurisdiction to decide these proceedings. One defendant has failed to file an acknowledgment of service, as a result of which she has no right to take part in the hearing: r. 8.4. The acknowledgments all dispute the court's jurisdiction, but the court has power under r. 3.1(2)(j) and (k) to decide the order in which issues are to be tried and to exclude an issue from consideration."
CPR part 7 or CPR Part 8?
"(2) A claimant may use the Part 8 procedure where –
(a) he seeks the court's decision on a question which is unlikely to involve a substantial dispute of fact; or
(b) paragraph (6) applies.
[ … ]
(6) A rule or practice direction may, in relation to a specified type of proceedings –
(a) require or permit the use of the Part 8 procedure; and
(b) disapply or modify any of the rules set out in this Part as they apply to those proceedings."
"15. Firstly, the Purported Claimants, on their own case, have raised a number of substantial disputes of fact, including (but not limited to) the following:
a) The facts and matters that are said to give rise to the interests and standing of [the first defendant] ("Beyat") as an Ultimate Account Holder (as defined in [the fourth defendant's first witness statement] and, furthermore, as a controlling Ultimate Account Holder, on or around 01 September 2021.
b) The facts and matters that are said to give rise to the purported de jure appointments of Julius Manuel Bozzino and Sunil Masson as purported directors of the First Claimant, the fact that they were not the original directors of the First Claimant and strangers when it issued its securities; and as such the facts and matters which is [sic] said to give Mr Bozzino and Mr Masson actual authority from the First Claimant to (i) purportedly join the First Claimant as a claimant to these proceedings and to seek the whole of the relief there to, and (ii) to purportedly engage and instruct Fieldfisher and Mr Black, as purported solicitors and agents of the First Claimant, to purportedly act on the First Claimant's behalf with respect to these proceedings.
16. Secondly, the Purported Claimants have made several wide-ranging and very serious allegations of fraud (all of which are yet to be fully particularised and will be disputed by the Relevant Defendants). I refer to the following examples in the Bozzino Statements (which should be seen as illustrative and by no means exhaustive):
a) at paragraphs 18-31 of Bozzino1 entitled 'fraudulent invoice and other invalid actions', Mr Bozzino intimates or intends to insinuate serious allegations of fraud and wrongdoings with respect to the demand for payment by Beyat;
b) at paragraph 35 of Bozzino1, Mr Bozzino submits that "[n]one of the actions taken by the 1st to 6th defendants above are legitimate and the submission of the Invoice for payment is in my view an attempt to obtain payment by fraud [emphasis added]";
c) paragraph 26 of Bozzino2, Mr Bozzino submits that "[the fourth defendant's first witness statement] sets out in detail the invalid actions taken by him and associates in purporting to appoint directors and purporting to cause the [first claimant] to enter into a fraudulent consultancy agreement [emphasis added]" and repeats his allegation that the Fourth Defendant and/or "his associates attempted fraudulently to obtain payment of £300,000 from Deutsche Bank AG on 7 September 2021";
d) at paragraph 28 of Bozzino2, Mr Bozzino denies that the materially false and/or misleading public announcement that he released or caused to be released on 6 September 2021 was "fraudulent"; the diametrically opposite to what was said by the Fourth Defendant in paragraphs 50 and 51 of his evidence in [his first witness statement]."
"18. … Deputy Master Marsh made a clear finding … that the claim involves substantial disputes of facts (which, in that instance, precluded any furtherance of the application). It is respectfully submitted that it is not now for this Court to displace, interfere with or go behind that extant ruling. Moreover, any maintenance or continuation of the proceedings within the Part 8 framework would be a direct contravention of the substance of the ruling of Deputy Master Marsh."
"6. I heard submissions from counsel concerning whether today's hearing should proceed as a disposal hearing. I gave an indication at the outset that I was minded to do so, unless I was satisfied that there were conflicts on the evidence that would make it impossible or improper for the hearing to proceed. What emerged from the submissions is that, and this is common ground between counsel, if the Court is able to undertake an evaluation of the evidence on a similar basis to that under CPR Part 24, and to conclude that the evidence does not meet the Part 24 threshold, in other words the evidence is fanciful, then the Court is entitled to proceed, notwithstanding that on the face of it there are issues of fact between the parties. I heard full and, as is to be expected, careful submissions from Mr Edwards, who appeared for the Defendant, seeking to persuade me that the case should go to a trial and the Court could not safely conclude his client's evidence was fanciful. I will deal with those submissions in a moment."
"22. … As I have indicated, the notes are in each case held by a nominee for a common depository. The common depository is not of course the owner of the notes. The notes are in fact held through two electronic book entry systems operated by Euroclear and Clearstream, by ultimate owners. Those ultimate owners, the account holders, may themselves be beneficial owners or, alternatively, they may themselves hold for clients sometimes directly or sometimes through intermediaries such as banks and brokerage houses.
23. … Castle Holdco itself is not generally concerned with who is the ultimate beneficial owner. Indeed the security documents themselves contain a provision that Castle Holdco shall treat the common depository or its nominee as the absolute owner of the global security for all purposes. However, the security documentation does contain a mechanism whereby the beneficial owner can upon request become a direct creditor of Castle Holdco."
"21. Secondly, and more generally, subject to CPR Part 8.1(6) , the Part 8 procedure is to be used where the claimant seeks the Court's decision on a question which is unlikely to involve a substantial dispute of fact. Part 8.2 provides that the Part 8 Claim Form must state 'the question which the claimant wants the court to decide; or the remedy which the claimant is seeking and the legal basis for the claim to that remedy'. It is, therefore, an express requirement of the use of the Part 8 procedure that the question for the Court is one that is unlikely to involve a substantial dispute of fact and it is, it seems to me, to be implied in the rules that the question should be framed with some degree of precision and/or be capable of a precise answer.
22. The experience of this Court shows that there is a real risk of the Part 8 procedure being used too liberally and inappropriately with the risks both of prejudice to one or other of the parties in the presentation of their case and of the court being asked to reach ill-formulated and ill-informed decisions.
23. In this case, MJL's Acknowledgment of Service took issue with the Court's jurisdiction on the basis that the Claim involved substantial issues of fact. That was an unsurprising stance given that Merit's pleaded case turned substantially on what it said were the consequences of or inferences to be drawn from the conduct of the parties rather than, for example, from words used. By the time of the hearing before me, MJL's position had shifted. MJL no longer maintained a jurisdictional objection as such and considered that it may be useful for the Court to reach decisions which could resolve issues between the parties. MJL recognised, however, that the Court might still have reservations about that approach.
24. I did indeed have such reservations and it remains, of course, a matter for the Court's discretion whether to grant declaratory relief at all.
25. Despite the characterisation of the question for the Court as the correct interpretation of the contract, this is not a case in which the Court is being asked to construe the written terms of the contract. On the contrary, the Court is being asked to determine the very nature of the contractual relationship between the parties, both parties accepting that there is some contractual relationship. It is highly unusual for the Court to be asked to do so, in effect, on documents only with a short hearing. My concerns were allayed to a large extent by Mr Mort QC's submission that the relevant facts were short and uncontentious and that MJL had not identified any other factual issues on which it might wish to rely. This is important: it is only in such cases that it is appropriate to issue Part 8 proceedings.
26. I remained concerned, nonetheless, about the scope of what the Court was being asked to do and I heard this Claim on the basis that I would not reach a conclusion until giving judgment as to how far I should go in terms of findings or declarations. There were a number of unsatisfactory aspects of these proceedings which did not make this task easier and serve to emphasise why the Part 8 procedure should not be over liberally deployed.
[ … ]
31. Had a Part 7 procedure been adopted, then on the face of the pleadings, the parties' positions would have been fully set out and, if not, further information could have been sought. If there were no need for factual evidence, there would have been mechanisms available (in the discretion of the court) to resolve the issue of the contractual relationship between the parties promptly –– for example, by the hearing of a preliminary issue or an expedited hearing –– and on a surer footing than is offered by the Part 8 procedure in circumstances such as this.
32. All these issues seem to me to illustrate why care should be taken by the parties and the Court in the deployment of the Part 8 procedure."
"In the Companies Acts 'director' includes any person occupying the position of director, by whatever name called."
"115. … A de facto director is not formally invested with office, but if what he actually does amounts to taking all important decisions affecting the relevant company, and seeing that they are carried out, he is acting as a director of that company. It makes no difference that he is also acting as the only active de jure director of a corporate director of the company."
"In the Companies Acts 'shadow director', in relation to a company, means a person in accordance with whose directions or instructions the directors of the company are accustomed to act."
In my judgment this does not assist the defendants either. Again, it is important to bear in mind that, in the 2006 Act, the use of the term "shadow director" is generally negative rather than positive, in the sense that it treats the shadow director as liable to the same liabilities (often criminal) as a director. It does not invest shadow director with powers given to a director. So, for example in section 260(5)(b) of the 2006 Act a shadow director is treated as a director, for the purposes of derivative claims. Again, in section 272(6) of the Act, a shadow director is treated as an officer of the company for the purposes of criminal liability for not appointing a secretary.
"It is clear that if the terms upon which the person receives the money are that he is bound to keep it separate, either in a bank or elsewhere, and to hand that money so kept as a separate fund to the person entitled to it, then he is a trustee of that money and must hand it over to the person who is his cestui que trust. If on the other hand he is not bound to keep the money separate, but is entitled to mix it with his own money and deal with it as he pleases, and when called upon to hand over an equivalent sum of money, then, in my opinion, he is not a trustee of the money, but merely a debtor."
"Directors stand in a fiduciary relation to the company, but not to a stranger with whom the company is dealing. It is of course true that a company acts through its directors. But that does not involve the proposition that if a breach of trust is committed by a company, acting through its board, a beneficiary can maintain any action against the directors in respect of such breach of trust."
(1) the statement by Millett LJ (as he then was) in Bristol & West Building Society v Mothew [1998] Ch 1, 18, that "A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence…"
(2) the statement by Mr Justice Henry (of the New Zealand Court of Appeal), giving the advice of the Privy Council in Arklow Investments Ltd v Maclean [2000] 1 WLR 594, 598, that "In the present context, the concept encaptures a situation where one person is in a relationship with another which gives rise to a legitimate expectation, which equity will recognise, that the fiduciary will not utilise his or her position in such a way which is adverse to the interests of the principal."
(3) the statement of Sales J (as he then was) in F&C Alternative Investments (Holdings) Ltd v Barthelemy [2011] EWHC 1731, [225], that "Fiduciary duties are obligations imposed by law as a reaction to particular circumstances of responsibility assumed by one person in respect of the conduct of the affairs of another …"
(4) the reference of Briggs J (as he then was) in Ross River Ltd & Anor v Cambridge City Football Club Ltd [2007] EWHC 2115 (Ch), [198], to "well known badges or hallmarks of a fiduciary relationship, such as: 'Whenever the plaintiff entrusts to the defendant a job to be performed, for instance, the negotiation of a contract on his behalf …' "
"22. The starting point is the resolution of 15 April by Highbury as Noteholder removing C4 as Share Trustee. No evidence has been filed by the Claimants as to who are the Noteholders; I am told that this is for reasons of confidentiality. The Claimants say that, even if Highbury were a Noteholder (and it has produced no evidence to that effect), this would not entitle Highbury to remove C4 as Share Trustee holding the issued share capital in C1 and C2. This is because Noteholders have no power to remove and appoint the Share Trustee under clause 9 of the Share Trust Deeds (see paragraph 5 above). That is plainly correct. Without the valid appointment of Highbury as the holder of the shares in C1 and C2, the Defendants' entire house of cards collapses."
But I make clear that my own conclusion in this case has been reached independently of the judgment of Mr Halpern QC.
Remedies
Declarations
"The court may make binding declarations whether or not any other remedy is claimed".
"21. … When considering the exercise of the discretion, in broad terms, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are other special reasons why or why not the court should grant the declaration. More specifically:
(1) There must, in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant. A present dispute over a right or obligation that may only arise if a future contingency occurs may well be suitable for declaratory relief and amount to a real and present dispute.
(2) Each party must, in general, be affected by the court's determination of the issues concerning the legal right in question.
(3) The fact that the claimant is not a party to the relevant contract in respect of which such a declaration is sought is not fatal to an application for a declaration, provided that the claimant is directly affected by the issue. In such cases, however, the court ought to proceed very cautiously when considering whether to make the declaration sought.
(4) The court will be prepared to give declaratory relief in respect of a 'friendly action' or where there is an 'academic question', if all parties so wish, even on 'private law' issues. This may be particularly so if the case is a test case or the case may affect a significant number of other cases, and it is in the public interest to decide the point in issue.
(5) The court must be satisfied that all sides of the argument will be fully and properly put. It must, therefore, ensure that all those affected are either before it or will have their arguments put before the court. For this reason, the court ought not to make declarations without trial. In Wallersteiner v. Moir, Buckley LJ said this:
'It has always been my experience and I believe it to be a practice of very long standing, that the court does not make declarations of right either on admissions or in default of pleading. A statement on this subject of respectable antiquity is to be found in Williams v. Powell [1894] WN 141, where Kekewich J, whose views on the practice of the Chancery Division have always been regarded with much respect, said that a declaration by the court was a judicial act, and ought not to be made on admissions of the parties or on consent, but only if the court was satisfied by evidence. If declarations ought not to be made on admissions or by consent, a fortiori they should not be made in default of defence, and a fortissimo, if I may be allowed the expression, not where the declaration is that the defendant in default of defence has acted fraudulently…'
(6) In all cases, assuming that the other tests are satisfied, the court must ask: is this the most effective way of resolving the issues raised? In answering that question, the court must consider the other options of resolving the issue."
Injunctions
"The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so."
"It does not follow that because a man has done a wrongful act an injunction will be granted against him, though he is liable to damages for the wrong. The Court of Chancery said, 'Where a man threatens and intends to do a wrongful act, we will, before it is done, grant an injunction to prevent his doing it, and we will grant it where the act has been done and is likely to be repeated'—the jurisdiction is simply preventive."
"169. The principles may be summarised in the following way:
i) The invocation of this jurisdiction requires proof that, unless the court intervenes by injunction, there is a real risk that an actionable wrong will be committed (see e.g. Coflexip SA v Stolt Comex Seaway MS Ltd [1999] 2 All E.R. 593, at [7]–[10]).
ii) There is no fixed or absolute standard for measuring the degree of apprehension of a wrong which must be shown in order to justify quia timet relief: see Hooper v Rogers [1975] Ch. 43 at 50. The more serious the consequences and the risk of wrongdoing, the more likely the court will be satisfied that relief is appropriate.
iii) If the court decides to grant a final injunction, the width of that injunction is a matter for the court's discretion and can be tailored according to the circumstances: see Gee [2-045], citing Microsoft Corp v Plato Technology Ltd, unreported, 15 July 1999). The court has a discretion to order mandatory steps to be taken for the purpose of avoiding the commission of any wrong and preventing any harm to the applicant, though this power will be exercised with caution: See [Gee on Commercial Injunctions (7th ed.)] [2-046].
iv) Whether a case is an appropriate one for the grant of quia timet relief has to be considered in the light of all the relevant circumstances known at the time of the hearing of an application for an interim injunction, or at the time of trial: Proctor v Bayley (1889) 42 Ch D 390, 398 (injunction against infringement of a patent refused when the last infringement had been four years previously and there was no intention to infringe in the future).
v) The relevant factors include whether there is a threat of imminent wrongdoing, the seriousness of the damage which might be done imminently, whether the defendant is actively seeking to prevent wrongdoing, or is himself threatening to commit a wrong, and whether if damage were done, it would be rectifiable: see Gee [2-046]."
Envoi
"1. … In very broad terms the Claimants say that there has been a sustained and determined assault by the principal Defendants on a group of securitisation structures in which the Claimants are the issuers of publicly traded notes."
"252. The Defendants have targeted these securitisation structures relentlessly. One or other of them have pretended to occupy the roles of directors of the Issuers, trustees for the noteholders, receivers of the underlying assets, Servicers, advisers to the Issuers, and other positions. They purported (in their assumed role of directors) to forfeit the shares held by BMFH in the Issuers and sell them to Highbury. They managed to change important company filings at Companies House and made misleading announcements to investors over the RNS. None of this is legitimate. The Defendants have never occupied any of these roles. They are, for legal purposes, strangers to the Securitisations. The reasons they have given for their actions are spurious. The corporate assault has been going on for the best past of two years, in the teeth of earlier orders of the courts and the Claimants' reasoned protests. It must now stop. I shall grant relief in respect of both claims."