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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Queensgate Place Ltd v Solid Star Ltd & Ors [2023] EWHC 93 (Ch) (20 January 2023) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2023/93.html Cite as: [2023] EWHC 93 (Ch), [2023] BCC 500 |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANY LIST (ChD)
IN THE MATTER OF SOLID STAR LIMITED (IN LIQUIDATION)
AND IN THE MATTER OF THE COMPANIES ACT 2006
AND IN THE MATTER OF THE INSOLVENCY ACT 1986
B e f o r e :
Sitting as a judge of the High Court
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QUEENSGATE PLACE LIMITED |
Petitioner |
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- and - |
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(1) SOLID STAR LIMITED (IN LIQUIDATION) (2) VIKING WORLD INVESTMENTS SA (3) MR PRAKASH BHUNDIA (4) MR MINESH BHUNDIA |
Respondents |
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The Third Respondent represented himself and as a director of the Second Respondent
Ms Sarah Bayliss and Mr James Kane (instructed by Spencer West LLP) for the Fourth Respondent
The First Respondent did not appear and was not represented
Hearing dates: 11 and 12 January 2023
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Crown Copyright ©
HH JUDGE JARMAN KC :
"The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if—
(a) it considers that—
(i) that the claimant has no real prospect of succeeding on the claim or issue; or
(ii) that the defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial."
"281.— Effect of discharge.
(1) Subject as follows, where a bankrupt is discharged, the discharge releases him from all the bankruptcy debts, but has no effect—
(a) on the functions (so far as they remain to be carried out) of the trustee of his estate, or
b) on the operation, for the purposes of the carrying out of those functions, of the provisions of this Part;
and, in particular, discharge does not affect the right of any creditor of the bankrupt to prove in the bankruptcy for any debt from which the bankrupt is released.
(2) Discharge does not affect the right of any secured creditor of the bankrupt to enforce his security for the payment of a debt from which the bankrupt is released.
(3) Discharge does not release the bankrupt from any bankruptcy debt which he incurred in respect of, or forbearance in respect of which was secured by means of, any fraud or fraudulent breach of trust to which he was a party."
"57. I do not underestimate the importance of a finding adverse to the integrity to one of the parties. In itself, the risk of such a finding may provide a compelling reason for allowing a case to proceed to full oral hearing, notwithstanding the apparent strength of the claim on paper, and the confident expectation, based on the papers, that the defendant lacks any real prospect of success. Experience teaches us that on occasion apparently overwhelming cases of fraud and dishonesty somehow inexplicably disintegrate. In short, oral testimony may show that some such cases are only tissue paper strong…
58. This collective judicial experience does not always, or inevitably, provide a compelling reason for allowing the case to proceed to trial, nor for that matter require the judge considering the application to reject the conclusion that there is no real prospect of a successful defence of the claim if he is satisfied that there is none. That is not what the Rules provide, and if that had been intended, express provision would have been made. It is however a factor constantly to be borne in mind, if and when, as here, the reason for concluding summary judgment is appropriate is consequent on a disputed finding, adverse to the integrity of the unsuccessful party."
"On the one hand, summary judgment is designed for plain cases—cases which are not fit for trial at all: Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 , para 95, per Lord Hope of Craighead. That consideration weighs all the more heavily when the case involves allegations of serious fraud or dishonesty; generally, conclusions on such issues ought to be reached at trial, so that obvious caution ought to be exercised before giving summary judgment in a case of that nature: Wrexham Association Football Club Ltd v Crucialmove Ltd [2007] BCC 139, especially at paras 49–59. On the other hand, where it can be ascertained without the conduct of a mini-trial that there is no realistic prospect of a successful defence, then summary judgment will or may be appropriate and the court should not be deterred from granting such relief simply because of the volume—or, in some cases, smokescreen—of documents. Moreover, if in all the circumstances, there is no real prospect of a defendant successfully defending a claim, then, even though good faith, fraud or integrity are an issue, there is no longer a bar to giving summary judgment: Wrexham Associated Football Club, above."
"…when similar issues remained to be determined at a full trial as between the other parties. In the particular circumstances of this case that constitutes a "compelling reason" not to enter summary judgment within the meaning of CPR 24.2(b) . A judge in multi-party litigation must aim to do justice as between all parties involved in the case."
73. A further significant feature is that summary judgment in this case achieves much less in terms of saving costs and court time than is normal. There is going to be a trial anyway…"
"1. The court has a complete discretion whether to order security.
2. The possibility that the claimant will be deterred from pursuing its claim by an order for security is not without more a sufficient reason for not ordering security.
3. The court must weigh the injustice to the claimant if prevented from pursuing a proper claim against the injustice to the defendant if no security is ordered and any costs ordered in the defendant's favour cannot be recovered.
4. The court will have regard to the claimant's prospects of success, but should not go into the merits in detail unless it can clearly be demonstrated that there is a high degree of probability of success or failure.
5. The court can order any amount up to the full amount claimed by way of security, provided that it is more than a simply nominal amount but is not bound to make an order of a substantial amount.
…
7. The lateness of the application for security is a circumstance which can properly be taken into account but how it should be taken into account depends upon which party is responsible. It is proper to take into account the fact that costs have already been incurred by the claimant without there being an order for security. Nevertheless it is appropriate for the court to have regard to what costs may yet be incurred."