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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Piroozzadeh v Persons Unknown Category A & Ors  EWHC 1024 (Ch) (02 March 2023)
Cite as:  EWHC 1024 (Ch)
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BUSINESS AND PROPERTY COURTS OF ENGLAND
BUSINESS LIST (ChD)
London EC4A 1NL
B e f o r e :
| JAHANGIR PIROOZZADEH
|- and -
|(1) PERSONS UNKNOWN CATEGORY A
(2) PERSONS UNKNOWN CATEGORY B
(3) OA CAPITAL HOLDINGS LIMITED
(4) JOANNE INDUSTRY INC
(5) TD BANK NA
(6) KREISSPARKASSE KOELN
(7) BROCKHAUS & KOLLEGEN RECHTSANWALTGESELLSCHAFT MBH
(8) BINANCE HOLDINGS LIMITED
(9) AUX CAYES FINTECH CO LTD
MR D ARMSTRONG KC and MISS R MULDOON (instructed by Giambrone & Partners LLP) appeared on behalf of the Claimant.
MR D QUEST KC (instructed by Herbert Smith Freehills LLP) appeared on behalf of the Eighth Defendant.
MS L DE BRUYN (instructed by Cooley (UK) LLP) appeared on behalf of the Ninth Defendant.
Crown Copyright ©
MR JUSTICE TROWER:
"It is a basic principle of justice that an order should not be made against a party without giving him an opportunity to be heard. The only exception is when two conditions are satisfied. First, that giving him such an opportunity appears likely to cause injustice to the applicant, by reason either of the delay involved or the action which it appears likely that the respondent or others would take before the order can be made."
"6.17 Sir Anthony Mann was satisfied that the Order was properly obtained on an urgent without notice basis. In addition to the reasons addressed in submissions, the Claimant maintains that this was properly done as:
"The obligation to anticipate defences in pursuit of the obligation to make full and frank disclosure is very important. An Applicant for without notice relief has actively to consider what points of defence might be taken by the defendant and put them before the court. That is a fundamental requirement, and safeguard."
"The task of the judge on a without notice application in complex cases such as the present is not an easy one. He or she is often under time constraints which render it impossible to read all the documentary evidence on which the application is based, or to absorb all the nuances of what is read in advance, without the signposting which is contained in the main affidavit and skeleton argument. It is essential to the efficient administration of justice that the judge can rely on having been given a full and fair summary of the available evidence and competing considerations which are relevant to the decision."
"Judge: Let us refer back to the issue of constructive trustee. If a client pays money into a bank account, that bank is not then a constructive trustee.
Counsel: Respectfully, I disagree. Purely by receiving the assets in question is enough.
Judge: You are not fixed with constructive trustee unless you know of and are fully aware of a fraud.
Counsel: No, I do not agree. The initial wrongdoing is enough.
Judge: The exchanges only become constructive trustees once they have been told about your case against them. Have you written to the exchanges yet to put them on notice?
Counsel: No, my Lord."
"There are a number of reasons why the proprietary interest of the beneficiary may not be effective or enforceable. Obvious examples include cases where the property or its traceable proceeds have been transferred to a bona fide purchaser for value without notice; and cases where the property has been consumed or destroyed, or has ceased to be traceable."
"Further, and in any event, we note that the witness statement of Mr Bushell dated 15 November 2022 relied upon by the Eighth Defendant makes reference to proceedings in D'Aloia entirely unrelated to the present proceedings. We take the view that it would not have been appropriate for us to refer to those unconnected proceedings for various reasons, including:
Then in 6.21 it was said:
"We do not accept that a claimant must bring to a court's attention the defences any given defendant is likely to raise, as claimed by Mr Bushell, in order to comply with its duty of full and frank disclosure. This instead requires an admission on the part of a claimant that a defendant may be innocently caught up such that undertakings are given. This is precisely what was done."