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||Neutral Citation Number:  EWHC 2742 (QB)
||Case No: HQ12XO1575
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE EDER
|| Elektromotive Group Limited
(A Singaporean Company)
||- and -
Mr Peter de Verneuil Smith (instructed by Clyde & Co LLP) for the Claimant
Mr Tiran Nersessian (instructed by Rollingsons Solicitors Limited) for the Defendant
Hearing dates: 2, 3, 4 October 2012
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Eder:
- There are before the Court two main applications. First, an application on behalf of the defendant ("Mr Pan") to set aside a freezing order originally made on a hearing without notice by Nicola Davies J on 23 April 2012 and subsequently continued by Lang J on 30 April 2012. Second, an application by the claimant ("EGL") for a further order in relation to disclosure of assets.
- The original application for the freezing injunction was made at a hearing without notice before Collins J on 20 April 2012 supported by an affidavit of Mr Julian Connerty, a partner at Clyde & Co, solicitors acting for EGL. In the event, Collins J adjourned the application as there was no evidence before him to demonstrate that the application was urgent. The application was then heard by Nicola Davies J on 23 April 2012. Leave was granted to serve Mr Pan out of the jurisdiction. Since then, various further affidavits have been served together with a very large number of documents by way of exhibits including four affidavits by Mr Pan and, by way of response on behalf of EGL, affidavits from Mr Ang, Mr Navasero, Mr Tan and a further affidavit from Mr Connerty.
- At the end of the hearing on 4 October 2012, I informed the parties of my decision. This judgment sets out my reasons.
- For present purposes, the background to the proceedings can be summarised as follows – although I should make plain that since these are interlocutory proceedings I make no findings of fact and that the summary which I set out below is based simply upon what seems to me the relevant background as appears at this stage from the numerous affidavits and witness statements which have been submitted by the parties.
- EGL is a Singaporean investment holding company with interests in media, publishing, event management, food retailing and technology businesses. The Executive Vice-Chairman of EGL is Mr Ricky Ang Gee Hing ("Mr Ang"). EGL is registered in Singapore and its shares are traded on the secondary board of the Singapore Exchange, Catalist.
- At the time of the events giving rise to this claim EGL was known as The Lexicon Group Limited ("Lexicon"). The present dispute arises out of the acquisition of certain shares by Lexicon in a company called Elektromotive UK Limited ("EUK"), a company registered in and operating from the United Kingdom. EUK's business is primarily concerned with the provision of charging bays for electronic vehicles and software associated with the operation of such charging bays. The Managing Director of EUK is Mr Calvey Taylor-Haw. After the acquisition took place, Lexicon changed its name to EGL but, for convenience only, I shall refer to the company throughout as EGL.
- Mr Pan is a UK born businessman with a background in investment banking, accounting, auditing and asset management. He originally owned at least a 70% shareholding and was the sole Director of a BVI company, Calypso Group Holdings Limited ("Calypso Group") which wholly owned a Singaporean Company, Calypso Capital Pte Limited ("Calypso Capital"). According to the evidence, Mr Pan sold his interest in Calypso Group (and therefore also his indirect interest in Calypso Capital) sometime in August 2011. In the course of the hearing, I was told that this sale took place on 18 August 2011, the same date as he resigned as Director of Calypso Group.
- In addition, Mr Pan and his wife, Ms Aslinda Diam, were also originally beneficial owners of the shares in another BVI company, Calypso Holdings and Investments Limited ("CHIL"). According to the evidence, Mr Pan sold his shares in CHIL sometime in February 2012. In the course of the hearing I was told that in fact both Mr Pan and his wife sold their shares in CHIL on the same date i.e. 10 February 2012.
- In early November 2010, Calypso Capital entered into an agreement with EUK (the "Mandate") to assist EUK in a proposed merger with EGL in consideration of certain fees as described further below.
- Calypso Capital employed Mr Tom Navasero as a management consultant who played an important role in the merger. In so doing, he was, to some extent at least, directed and supervised by Mr Pan - although the extent of such direction and supervision is a matter in issue in these proceedings.
- On 6 December 2010, EGL agreed to buy a majority shareholding (51%) in EUK from various vendors including Prince Hakeem, Mr Simmons, Mr Earle and CHIL (the "Vendors"). The agreement (as amended by a supplemental agreement dated 2 March 2011) (the "SPA") provided that the value of the consideration was conditional on EUK achieving a net profit after tax ("NPAT") of at least £459,498 for the accounting year ending 28 February 2011. If the NPAT figure was lower, the amount of consideration reduced pursuant to a contractual formula. The form of the consideration was shares in EGL.
- In essence, EGL's case is that Mr Pan fraudulently conspired with Mr Navasero and others to inflate the NPAT artificially. The artificial increase in the NPAT allegedly consisted of two elements:
a. An order dated 14 February 2011 for £218,400 was sent by a Philippine company named Philab Industries Inc ("Philab") for software licences, in circumstances where Philab had neither interest in the software nor the ability to pay for it and was given assurancess by the conspirators that it would be put in funds in order to pay the invoice. The invoice remains unpaid. Philab is owned by the family of Mr Navasero.
b. Services being provided by H Technologies (UK) Limited ("H Technologies") and Grand Prix Design Services Limited ("Grand Prix Design"), two companies in substance owned and to a greater or lesser extent controlled by Messrs Simmons and Earle, both directors and shareholders of EUK, and Vendors. EUK had made payment for those services. In order to satisfy those considering the accounts of EUK, letters were fraudulently obtained from those companies waiving the invoices. No repayments were made and in the circumstances the "waivers" were a fiction.
- On 4 July 2011 at an emergency general meeting, EGL approved the SPA and the allotment of the consideration shares.
- On 19 July 2011 the SPA completed and shares were issued to the Vendors (including 100 million shares to CHIL) and/or their nominees.
- EGL's case is that as a result of the fraudulent NPAT figure it was wrongfully induced to pay an excessive price for its takeover of EUK. Specifically, EGL says that the true NPAT figure for the year ending 28 February 2011 was only £236,624 i.e. a "shortfall" of some £222,874 from the "target" of £459,498 and that, in consequence, it overpaid 494,737,780 shares issued by EGL equivalent to S$7,421,081.69.
- Under the Mandate, it would seem that EUK was responsible for the payment of Calypso Capital's fees although it is EGL's case that in the event (i) these fees were in fact met by an allotment of shares by each of the Vendors pro rata to their respective shares issued by EGL pursuant to the SPA; and (ii) various entities (viz Calypso Capital, Calypso Group and Sharp Consultants) and one individual all allegedly associated with Mr Pan (the "Allotees") received a total of 320 million shares with a cash value of approximately S$4.8 million. This is disputed in part by Mr Pan. In particular, it is his evidence that only approximately 180 million of these shares were allotted to companies associated with him i.e. Calypso Capital and Calypso Group.
- According to Mr Navasero, under the terms of his service agreement with Calypso Capital, it was originally agreed that he would be entitled to a success fee of one-third (i.e. 33.3%) of the net revenue generated by Calypso Capital on any deals he worked on although he says that it was later agreed that he would be entitled to 45% of the net revenue to be earned from the sale of shares in EUK. As I understand, Mr Pan accepts that the success fee payable to Mr Navasero was increased to 45% of the net revenue but he (i.e. Mr Pan) says, in effect, that Mr Navasero has received all sums properly due and that there are no further sums outstanding. This is disputed by Mr Navasero who maintains that there is a substantial amount (i.e. approx S$2 million) which has never been paid and remains due and outstanding to him from Mr Pan or his companies. The contemporaneous documents show that this has given rise to considerable animosity by Mr Navasero against Mr Pan. For example, Mr Navasero describes his actions against Mr Pan as a "battle march", "chasing him down", "being a desperate man" and "having nothing to lose".
- It appears that the fact that the NPAT figure was inaccurate was discovered by EGL within a short time after completion of the SPA i.e. in August 2011. However, at that stage EGL says that it was not clear exactly how this had come about nor which individuals were involved although contemporaneous emails even at that relatively early stage certainly show that EGL was contemplating pursuing injunctive relief against Calypso Capital and also considering its strategy against Mr Pan and others.
- Between 12 August 2011 and 16 November 2011, all shares issued to CHIL and the Allottees (i.e. a total of some 420 million) were sold and transferred to third parties and/or nominees. Some of these shares were pre-sold; some were sold on the open market; and some were sold off-market. EGL alleges that some at least of these shares (particularly those sold off-market) were sold very quickly at a steep discount (approximately 35%) to the market price. It is EGL's case that it is to be inferred that this was because Mr Pan was concerned that the fraud might be discovered (if it had not been discovered already) and that Mr Pan perceived that there was an urgent need to turn the shares into cash which could then be dealt with more easily and frustrate any claim by EGL. This is hotly disputed by Mr Pan.
- Meanwhile, Mr Pan departed from Singapore sometime in early August 2011. The precise date is unknown. According to Mr Connerty's first affidavit, Mr Pan disappeared from Singapore. Mr Ang's evidence is that he "simply vanished". It will be necessary to consider briefly the circumstances of Mr Pan's departure but it is EGL's case that he left Singapore as a "fugitive" (a term used to describe Mr Pan in Mr Connerty's first affidavit on the without notice hearing before Nicola Davies J), the inference which EGL invites the Court to draw being that this was because Mr Pan was aware that EGL would seek redress for the fraud at least against those companies and individuals who had received shares as a result. Again, this is hotly disputed by Mr Pan.
- Thereafter, it appears from various public announcements made by EGL that they were continuing with their investigations.
- On 17 January 2012, EGL wrote to CHIL at an address in Switzerland (which was the address given for notices under the SPA to CHIL) informing CHIL of its concerns with regard in particular to the Philab invoice. However, Mr Pan's evidence is that this letter was never received. The letter was also copied to certain email addresses thought to be those of Mr Pan or his wife. However, it is Mr Pan's evidence that those email addresses were either incorrect or defunct and that the letter was not seen by him (or his wife).
- On 30 January 2012, EGL's audit committee approved the appointment of an independent reviewer, PKF, to undertake a forensic investigation into the financial and accounting affairs of EUK for the accounting year ending 28 February 2011. PKF was formally appointed on 17 February 2012. Apparently, PKF's draft report only became available in the course of April 2012. It was referred to but not produced at the hearing before Nicola Davies J. PKF's final report was produced on 26 April 2012 (the "PKF Report").
- Meanwhile, on 16 February 2012, Mr Navasero signed a statutory declaration in effect admitting the fraud and implicating Mr Pan. This is an important document. It stated in relevant part as follows:
"4. As Chris resided overseas, I handled most of the Calypso Capital's projects in Singapore and executed everything that Chris asked me to do including in relation to the prospective deal involving shares in EUK and The Lexicon Group Ltd. Whilst I was the lead manager of Calypso Capital's projects in Singapore, from time to time when I travelled out of Singapore, Chris would handle these projects in my absence.
5. In relation to the EUK deal, I managed all documentation up till the signing of the Sales and Purchase Agreement ("SPA") on or about 6 December 2010 as well as all documentation relating to the completion of the transaction on or about 19 July 2011. In the SPA, the vendors and Chris (through CHIL) warranted that the Net Profit After Tax ("NPAT") of EUK for the financial year 2010 would be above the sum of £459,498. Chris and his wife, Aslinda Daim, were signatories of the SPA and its related agreements. I did not sign the SPA nor any related agreements nor am I a party to the SPA or any related agreements.
6. Prior to the completion of the transaction, it became clear that EUK would be unable to achieve the NPAT that had been warranted by the Vendors under the SPA. If this happened the Vendors would stand to receive significantly less for their stake in EUK which they were selling to the Lexicon Group Ltd. Chris asked me to fix the matter and find a solution.
7. In this regard sometime in January/February 2011 at a meeting in London where all the Vendors were present, Chris requested that I find an entity to which EUK could enter into a sales/distributorship agreement. In effect, Chris wanted me to create a sham transaction with the intention of inflating the NPAT of EUK.
8. In response to Chris' instructions that I fix the NPAT, I suggested to him at this meeting in London, amongst other things, that Philab Industries Inc ("Philab"), a company in Philippines owned by my family, could place an order for software sold by EUK. Chris recommended to all the Vendors who were present at this meeting in London that they should proceed with the sale to Philab of software amounting to approximately £218,400 to cover the potential shortfall in the NPAT. I felt uncomfortable about this arrangement due to the size of the transaction and informed Chris and the Vendors that Philab would not have the necessary resources to pay for such a large order of software. Chris then took me aside and told me that he would take care of it and arrange for the necessary fund to be extended to Philab to enable Philab to pay for the software ordered. Chris informed me that these funds were to have come from the consideration the Vendors would have received under the SPA. Consequently, Philab placed a purchase order for 6 units of EB Connect Server Licences and 12 units of EB Connect Application Licences in the sum of £218,400 and signed a distributorship agreement."
- Thereafter further letters were sent to CHIL (and others) – although again it is Mr Pan's case that such letters were never received or at least not seen by him (or his wife).
- In early April 2012, EGL commenced separate arbitration proceedings in Singapore against certain of the Vendors including CHIL some of which (including proceedings against Messrs Simmons and Earle) were subsequently settled. As I understand, EGL accepts that as a result of these settlements with such third parties, its claim against Mr Pan should be reduced and that the freezing injunction should in any event be varied to take this reduction in the claim into account.
- On 4 May 2012, EGL obtained a freezing injunction in the High Court of Singapore against CHIL in the sum of S$7,421,081.71. However, CHIL has not responded to nor participated in such proceedings. In effect, they have been ignored. Shortly thereafter, on 16 May 2012 a further freezing injunction was granted by an emergency arbitrator in one of the Singaporean arbitrations against one of the other Vendors i.e. Prince Hakeem in the sum of S$5,697,240.
- Meanwhile, the present proceedings were commenced in this Court and (as stated above) the present injunction was obtained on 23 April 2012. Paragraph 9 of the freezing injunction required Mr Pan to provide information and an affidavit regarding his assets exceeding £500 within 48 hours of service of the order. An order was granted for service out of the jurisdiction and for service by alternative means, including e-mail. According to EGL, service was effected pursuant to that order by e-mail on 25 April 2012 although it is asserted on behalf of Mr Pan that the e-mail addresses used to effect service were either incorrect, defunct or difficult to access which, it is said, resulted in some delays. In the event, Mr Pan did not attend and was not represented at the return date of the freezing injunction and, as I have already indicated, it was continued by Lang J on 30 April 2012. An acknowledgement of service on Mr Pan's behalf was filed on 16 May 2012.
- On 30 May 2012, Mr Pan's solicitors confirmed that they were instructed and served a Defence but stated that they were not yet in a position to revert on the affidavit required by the order as they were still taking their client's instructions. On 1 June 2012, Mr Pan's solicitors provided an approved but unsworn affidavit in relation to assets. On 6 June 2012, that affidavit was sworn and it was served shortly thereafter on 11 June 2012. The affidavit shows that Mr Pan's assets worldwide are of very limited value. The main asset shown is a flat in London said to be owned jointly by him and his wife with a value of £1.1-£1.3m although later evidence is to the effect that this is subject to a substantial mortgage leaving little, if any, net equity. Apparently, he has no other significant assets: the total value shown of his other worldwide assets is said to be no more than about £60,000 including cash of about £15,000. It is EGL's case that this is not believable and has not been adequately explained. This is hotly disputed by Mr Pan.
- The present application to set aside the injunction was issued on 18 June 2012.
- Against that background, I turn to consider the application to set aside the injunction which is based on five main grounds viz:
a. EGL does not have a good arguable case;
b. material nondisclosure/misrepresentation by EGL;
c. no risk of dissipation;
d. inadequacy of EGL's cross undertaking; and
e. in all the circumstances not just and convenient.
- To some extent these grounds overlap. In summary it was submitted on behalf of Mr Pan that EGL's evidence and the Particulars of Claim disclose a superficial case based almost entirely on groundless inference; that EGL has cloaked what is at its core a weak case by attacking Mr Pan's character and seeking to portray him as a fugitive and serial wrongdoer; that upon careful scrutiny, the grounds upon which that portrayal is based are either non-existent or nothing more than unfair insinuation; and that upon discounting those insinuations it is plain that there is no evidence aside from Mr Navasero's contentions directly implicating Mr Pan in a broader conspiracy.
- The general principles in relation to freezing injunctions were not in dispute. In particular:
a. The applicant must, at least show a "good arguable case" which means "more than barely capable of serious argument, but not necessarily one which the judge considers would have a better than 50 per cent chance of success": see per Mustill J in The Niedersachsen  2 Lloyd's Rep 600 (at p605A).
b. A good arguable case was the minimum that a claimant had to show to cross the threshold for the exercise of the jurisdiction: The Niedersachsen  1 WLR 1412 where Kerr LJ emphasised that the Court had to look at the evidence as a whole in deciding whether or not it is just an convenient to exercise the discretion (at p1417C-F); and that the freezing order jurisdiction cannot be invoked to provide claimants with security for their claim even where the claim appears likely to succeed (at p1422C-D).
c. When assessing whether there is a good arguable case the Court should be especially mindful of the particular scrutiny applied by the courts to serious allegations of fraud and the courts' approach generally to considering serious allegations including those of fraud: see Owens Ban v Etoile Commercial  1 WLR 44 (at p51B-C) and Re H  AC 563 (at p586D-H). Ludsin Overseas Ltd v Eco3 Capital Ltd  EWHC 1980 (Ch) (at para 51).
d. There is a high duty on the applicant. Thus, as appears from RW Technologies Ltd v Gibbs  C.P. Rep. 40 (at p26 line 15 to p27 line 12):
i. The duty on the applicant in such circumstances goes beyond merely identifying points of defence which might be taken against them, important though that is;
ii. The applicant has to show the utmost good faith, identify the crucial points for and against the application and not rely on general statements and the mere exhibiting of numerous documents;
iii. The applicant has to investigate the nature of the claim asserted and the facts relied on before applying, and has to identify any likely defences. He has to disclose all facts which reasonably could or would be taken into account by the Court. The duty is not restricted to matters of fact, but extends to matters of law;
iv. The applicant also has a duty to investigate the facts and fairly to present the evidence;
v. There is a high duty to draw the Court's attention to significant factual, legal and procedural aspects of the case;
vi. Full disclosure has to be linked with fair presentation. The judge has to have complete confidence in the thoroughness and the objectivity of those presenting the case for the applicant; and
vii. It is the undoubted duty of counsel to draw to the judge's attention weaknesses in his case and to make sure the judge understands what might be said on the other side even if the judge says he has read the papers (see p29, line 6).
e. In considering whether there has been any relevant non-disclosure and what consequences should follow, the relevant principles are as set out in Brinks Mat v Elcombe  3 All ER 188, Ralph Gibson LJ set out the following principles to be applied:
"(i) The duty of the applicant is to make 'a full and fair disclosure of all the material facts': see R v Kensington Income Tax Comrs, ex p Princess Edmond de Polignac  1 KB 486 at 514 per Scrutton LJ.
(ii) The material facts are those which it is material for the judge to know in dealing with the application as made; materiality is to be decided by the Court and not by the assessment of the applicant or his legal advisers: see the Kensington Income Tax Comrs case  1 KB 486 at 504 per Lord Cozens-Hardy MR, citing Dalglish v Jarvie (1850) 2 Mac & G 231 at 238, 42 ER 89 at 92, and Thermax Ltd v Schott Industrial Glass Ltd  FSR 289 at 295 per Browne-Wilkinson J.
(iii) The applicant must make proper inquiries before making the application: see Bank Mellat v Nikpour  FSR 87. The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made such inquiries.
(iv) The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including (a) the nature of the case which the applicant is making when he makes the application, (b) the order for which application is made and the probable effect of the order on the defendant: see, for example, the examination by Scott J of the possible effect of an Anton Piller order in Columbia Picture Industries Inc v Robinson  3 All ER 338,  Ch 38, and (c) the degree of legitimate urgency and the time available for the making of inquiries: see Bank Mellat v Nikpour  FSR 87 at 92–93 per Slade LJ.
(v) If material non-disclosure is established the Court will be 'astute to ensure that a plaintiff who obtains … an ex parte injunction without full disclosure is deprived of any advantage he may have derived by that breach of duty … ': see Bank Mellat v Nikpour (at 91) per Donaldson LJ, citing Warrington LJ in the Kensington Income Tax Comrs case.
(vi) Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues which were to be decided by the judge on the application. The answer to the question whether the non-disclosure was innocent, in the sense that the fact was not known to the applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the applicant to make all proper inquiries and to give careful consideration to the case being presented.
(vii) Finally 'it is not for every omission that the injunction will be automatically discharged. A locus poenitentiae may sometimes be afforded': see Bank Mellat v Nikpour  FSR 87 at 90 per Lord Denning MR. The Court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the ex parte order, nevertheless to continue the order, or to make a new order on terms:
'… when the whole of the facts, including that of the original non-disclosure, are before it, [the Court] may well grant such a second injunction if the original non-disclosure was innocent and if an injunction could properly be granted even had the facts been disclosed.'
(See Lloyds Bowmaker Ltd v Britannia Arrow Holdings plc (Lavens, third party)  3 All ER 178 at 183 per Glidewell LJ.)"
f. In the same case, Slade LJ said:
"Nevertheless, the nature of the principle, as I see it, is essentially penal and in its application the practical realities of any case before the Court cannot be overlooked. By their very nature, ex parte applications usually necessitate the giving and taking of instructions and the preparation of the requisite drafts in some haste. Particularly in heavy commercial cases, the borderline between material facts and non-material facts may be a somewhat uncertain one. While in no way discounting the heavy duty of candour and care which falls on persons making ex parte applications, I do not think the application of the principle should be carried to extreme lengths. In one or two other recent cases coming before this Court, I have suspected signs of a growing tendency on the part of some litigants against whom ex parte injunctions have been granted, or of their legal advisers, to rush to the R v Kensington Income Tax Comrs principle as a tabula in naufragio, alleging material non-disclosure on sometimes rather slender grounds, as representing substantially the only hope of obtaining the discharge of injunctions in cases where there is little hope of doing so on the substantial merits of the case or on the balance of convenience."
g. If a non-disclosure has taken place the degree of culpability is relevant as is the relevance of the non-disclosure. It may in the circumstances be disproportionate to discharge a freezing injunction notwithstanding a material non-disclosure (TCF v Bilgin  EWHC 2732 (Comm)).
h. As to delay in making the application, the relevant principles and considerations are to be found in three cases viz:
i. Arena Corporation Ltd v Peter Schroeder  EWHC] 1089 (Ch) at paragraph 213 in particular at sub-paragraphs (5) and (6) where the Deputy Judge stated as follows:
"(5) The Court should assess the importance and significance to the outcome of the application for an injunction of the matters which were not disclosed to the Court. In making this assessment, the fact that the judge might have made the order anyway is of little if any importance.
(6) The Court can weigh the merits of the plaintiff's claim, but should not conduct a simple balancing exercise in which the strength of the plaintiff's case is allowed to undermine the policy objective of the principle."
ii. Fiona Trust Holding Corporation v Privalov & Ors  EWHC 217 (Comm) where David Steel J stated as follows:
"69. There is no doubt that the fact of the failure to make an earlier application against Mr. Skarga is a material consideration vis a vis the application against him. There are in this context two particular considerations:
a) The delay clearly raises the question whether the Claimant really needs an injunction pending trial: in short the delay may give rise to the provisional conclusion that the risk of secretion had already accrued.
b) Nonetheless, the applicant is entitled to take up time in making reasonable enquiries prior to launching an application, the more so where the nature of his case is based on fraudulent or dishonest activity (see Grupo Torras v Al-Sabah, C/A, 16 February 1994): the fact that thereafter the application is made inter partes is scarcely prejudicial to the respondent.
70. Furthermore it has to be borne in mind that the rationale for a freezing order is not so much the risk of dissipation as such, but the risk that a judgment in favour of Claimants would remain unsatisfied either because of dissipation or secretion or dispersal: see Mercedes Benz AG v. Leiduck  AC 284. I accept that delay is potentially a significant discretionary consideration but much depends on the individual facts of each case.
71. Furthermore it strikes me that the Claimants are quite properly focusing on the requirements in the draft orders for disclosure by Mr Skarga and Mr Nikitin of their assets. In practical terms, the world-wide freezing order is ancillary to the disclosure order: see Grupo Torras v Al – Sabah, ante."
iii. Cherney v Neuman  EWHC 1743 (Ch) at paragraph 77 where HH Judge Waksman summarised certain general points that may be made about delay in the context of freezing orders and stated at sub-paragraph 5 as follows:
"(5) In such circumstances, the direct consequences of delay may be two-fold:
(a) If a delay at this stage is prolonged and there is no justification for it, it can amount to evidence that the claimant does not genuinely believe that there is a real risk of dissipation which requires to be safeguarded against by an injunction – or that the factors said to demonstrate such a risk are not as persuasive as they first appear;
(b) But also, if in truth there was a real risk of dissipation, a fortiori that risk has been present since at least the issue of proceedings and would have been likely to materialise in the form of actual dissipation or secretion at any time thereafter. There is no reason why, on this hypothesis, the defendant should wait before dissipating or only dissipate once he has notice of the application for an injunction. And in any event even if he was not spurred into action before the making of the application the dissipation could be completed before that application was heard. If so, any injunctive relief then to be granted is likely to be pointless and therefore unjustified. Of course it could be argued (and has been argued by Mr Jones here) that an applicant in this position would simply have to accept that if some or most of the assets have already been dissipated or secreted the protection now available to him is much diminished but that he should still be entitled to freeze what he can, as it were. That was an argument which found favour with Staughton LJ in Galadari (supra) though this formed no part of his decision. No doubt much will turn on the facts of each case, including the nature of the defendant's likely assets, but in my view, the Court should be wary of acceding to arguments of this kind when, on the face of things, the necessity for or usefulness of the freezing injunction now being sought is speculative at best…"
i. As to risk of dissipation, the applicable principles are usefully set out by Arnold J in VTB Capital Plc v Nutritek International Corp and ors  EWHC 3107 (Ch) at paragraphs 227-230. In particular, the relevant principles drawn from the various authorities are as follows:
i. As stated above, the Court must conclude on the whole evidence before it that the refusal of a freezing order would involve a real risk that the judgment would remain unsatisfied: The Niedersachsen  1 WLR 1412 (at 1422H). In Z Ltd v A-Z  QB 558 (at 585A-G), Kerr LJ held that one particular form of abuse of this basic jurisdictional principle was as follows:
"The increasingly common one, as I believe, of a Mareva injunction being applied for and granted in circumstances in which there may be no real danger of the defendant dissipating his assets to make himself 'judgment-proof'; where it may be invoked, almost as a matter of course, by a plaintiff in order to obtain security in advance for any judgment which he may obtain; and where its real effect is to exert pressure on the defendant to settle the action."
ii. Bare assertions that a defendant is likely to put assets beyond the claimant's grasp and is unlikely to honour any judgment or award are not enough of themselves. Exiguousness of the claimant's evidence on this aspect must weigh strongly when the Court comes to consider the matter inter partes on an application to discharge: The Niedersachsen (above) (at 1419H-1420B).
iii. There must be solid evidence of the risk of dissipation: Thane v Tomlinson  EWCA Civ 1272 (at para 21).
iv. The mere reliance on the alleged dishonesty of the defendant is not of itself sufficient to found a risk of dissipation. It is appropriate in each case for the Court to scrutinise with care whether what is alleged to have been the dishonesty of the person against whom the order is sought in itself really justifies the inference that that person has assets which he is likely to dissipate (Thane (above) at para 28).
Good Arguable Case
- Against the background of those general principles, I turn first to consider the question of "good arguable case". In that context, I have already summarised the broad thrust of EGL's claim in these proceedings. However, it is important to note that Mr Nersessian submitted that the claim as pleaded in the Particulars of Claim is seriously deficient. In particular, he submitted that the allegations that seek to implicate Mr Pan in the fraud which are essentially contained in paragraphs 16 to 18 of the Particulars of Claim are unsatisfactory. Those paragraphs state as follows:
"16. In about late 2010 or early 2011 one or more meetings were held within the United Kingdom at which the Defendant, the Vendors (or one or more of them) and Mr Navasero were present. One of the subjects discussed at one or more of those meetings was an anticipation that the NPAT for the year to 28 February 2011 would fall significantly short of £459,498.
17. At around the time of that meeting or meetings, whether in the course of the meeting or meetings or otherwise, the Defendant asked Mr Navasero to address this issue. Mr Navasero informed the Defendant, and possibly others of the Vendors, around the time of and/or at the meeting or meetings that it would be possible for Philab to place an order for software, and the Defendant proposed that there should be a sale of software to Philab in the sum of £218,400 which would cover the potential shortfall in the NPAT.
18. Mr Navasero expressed concern that Philab would not have sufficient funds to pay such a large invoice. The Defendant took him aside to say that he, the Defendant, would provide the funds to Philab out of the consideration to be paid by the Claimant."
- In particular, Mr Nersessian submitted that what is stated in paragraph 16 is confused and that paragraph 17 is imprecise in the extreme. In particular, he submitted: that the pleading does not specify when the alleged meeting or meetings took place; that it is unclear who was supposedly present at the alleged meeting or meetings; that the words "or otherwise" in paragraph 17 could mean anything; that there is no commitment as to exactly what allegedly happened or what was said at the alleged meeting or meetings; that there is a complete lack of particulars; and that, in short, there is nothing in these paragraphs which would necessarily justify a fraud allegation against Mr Pan.
- I am bound to say that I have some sympathy with certain of those criticisms and the manner in which EGL's case is pleaded. However, it seems to me that looking at the pleading as a whole including paragraph 22 and paragraph 35 of the Particulars of Claim, there can, in my view, be no real doubt as to the essential allegation being made against Mr Pan; and Mr Nersessian fairly accepted that this was indeed the case. On this basis, notwithstanding the criticisms advanced against the form of the pleading, it seems to me that it does at least advance a proper claim in fraud.
- Nevertheless, it was Mr Nersessian's submission that the evidence in support of such alleged fraud was, in any event, at best very thin and did not satisfy the test of "good arguable case". In particular, he submitted that Mr Navasero's declaration was, at least in part, extremely vague and inconsistent with other evidence; and that there were no e-mails or other documents anywhere in the voluminous evidence submitted before the Court which showed that Mr Pan was involved in the fraud.
- In response, Mr de Verneuil Smith submitted that any criticisms which might be made of Mr Navasero's declaration were really matters of detail; that, if what Mr Navasero said in his declaration and subsequent affidavit is true, then Mr Pan was clearly involved in the fraud; that clever fraudsters rarely leave documents about that establish their fraud; and that EGL had a strong case here against Mr Pan supported by witness evidence and contemporary documents. As to the witness evidence, he relied in particular upon the signed declaration of Mr Navasero dated 16 February 2011, the sworn affidavit of Mr Navasero in these proceedings as well as evidence from Mr Simmons and Mr Earle. In addition, Mr de Verneuil Smith relied on the other evidence, in particular from Mr Ang, that Mr Pan was the principal driver and architect of the EUK deal. Mr de Verneuil Smith accepted, of course, that the Court cannot at this stage decide the credibility of witnesses by affidavit and an application to set aside a freezing injunction is not, or at least should not be, a mini trial. Indeed, Mr de Verneuil Smith submitted that EGL's case is much stronger than just "good arguable" and that the evidential case against Mr Pan has, if anything, strengthened since the without notice hearing and further evidence has been obtained. In support of that submission Mr de Verneuil Smith relied in particular upon the following.
- First, Mr de Verneuil Smith said that there was here solid evidence that a fraud took place which inflated the NPAT of EUK for the year ending 28 February 2011 both with regard to the production of the Philab invoice and the waiver of invoices by Grand Prix Design and H Technologies. In my view, it is unnecessary to recite the evidence in relation to the existence of such fraud. It is set out, for example, in considerable detail in the PKF Report. Although it is right that the formal position adopted by Mr Pan in these proceedings as appears from his responses to certain requests for information under CPR part 18 is that he does not admit the perpetration of any fraud at all, nevertheless there are numerous passages in the second affidavit of Mr Pan (including paragraphs 26, 109, 116, 146 and 147) which, at the very least, suggest that Mr Pan does accept that such fraud was indeed committed. In any event, it seems to me that there is at the very least an overwhelmingly strong case that a fraud was committed by at least one or more individuals (including Mr Navasero) by artificially inflating the NPAT figure.
- However, as submitted by Mr Nersessian, the fact that a fraud was committed by someone does not necessarily mean that Mr Pan himself was involved or otherwise implicated in that fraud. I agree that this is absolutely crucial and that the focus must be to consider most carefully what, if any, case can properly be said to exist against Mr Pan himself.
- As I have said, the heart of the case against Mr Pan is based upon the evidence of Mr Navasero as contained in his declaration and subsequent affidavit which I have already referred to above. As to this, I agree that such evidence should be approached with a good deal of scepticism. This is not only because Mr Navasero is, in effect, a self-confessed fraudster but also because of a number of further reasons of which the most important would seem to be the following:
a. Philab is, as I have said, owned by the family of Mr Navasero and, for that reason, the issuance of the Philab invoice could have been readily generated by Mr Navasero without the assistance of Mr Pan or any third party.
b. It would seem from certain documents (including Mr Navasero's own email dated 29 July 2011) that he was at some stage in a "desperate financial position" and therefore had a strong motive himself to perpetrate the fraud for his own personal gain.
c. Mr Navasero is arguably at least waging a personal vendetta against Mr Pan in large part because he, Mr Navasero, appears to believe (whether rightly or wrongly) that he has not received full payment from Mr Pan or his companies for the work he did in relation, in particular, to the EUK deal although it is Mr Navasero's evidence, in effect, that there is no personal vendetta and that he is simply seeking to recover what is properly due to him.
- I should mention that Mr Nersessian submitted that another reason for approaching Mr Navasero's evidence with scepticism is that there must have been some "deal" done between EGL and Mr Navasero in order to gain Mr Navasero's co-operation. However, there is no evidence to support that suggestion and, on the contrary, any such "deal" is specifically denied by EGL.
- I cannot resolve these matters at this stage but it seems to me right that as stated in the PKF Report I should approach the evidence of Mr Navasero with proper scepticism and very careful scrutiny indeed.
- If EGL's case had rested solely on the evidence of Mr Navasero, I suppose there might be some doubt as to whether the "good arguable case" threshold would have been met. However, in my judgment, that threshold is amply satisfied having regard to the following additional matters.
- First, the evidence of Mr Navasero is supported by the other evidence and statements that I have referred to. For example, on 29 November 2010, Mr Navasero sent an email to Mr Earle, Mr Simmons, Prince Hakeem and Mr Pan stating that the profit after tax figure for the year was at that stage only £174,000 which was, of course, well below the "target" NPAT figure for the year. As to this, Mr Navasero's email continued as follows:
"….. If 450K is not met a reduction in valuation will be applied whereby a pro rata discount on the initial valuation of $30m will be reduced by the difference last year's PAT of 450K to this year's Feb 28 2011 PAT.
I urge the management team to ensure that a PAT of 450 K is reached by January 2011.
If not an injection of income will need to be done prior to closing. Loans will need to be paid down and other accounting procedures will need to be implemented to increase the company's PAT.
- Mr Pan's evidence is that although this email was addressed to him, he has no recollection of it. In any event, when Mr Simmons was asked much later in late February 2012 to explain his involvement with regard to the alleged inflation of the NPAT figure, he (i.e. Mr Simmons) responded as follows:
"……. Following the receipt of the e-mail from Tom Navasero….. during the next successive meeting at Littlehampton during the week starting 12 December 2010, I raised this with Mike Earle and subsequently questioned the meaning with Chris Pan on the comment of "injecting income" subsequently Chris Pan put forward a concept to inflate the PAT number. CP was very persistent on this topic and my response to this proposal was to advise that I am not interested in any concept that would synthetically alter the PAT number via illicit means. To my recollection this topic was not discussed again with me as I had been confrontational with CP on the topic…"
- I fully recognise that the PKF Report suggests that Mr Simmons may well have been involved himself in the falsification of the Philab invoice, that such response may therefore be self-serving in seeking to deflect responsibility away from himself towards Mr Pan; and that whatever Mr Simmons says does not of itself necessarily prove that Mr Pan was in fact involved in the fraud. However, it does on its face support the evidence of Mr Navasero and at least goes so far as to suggest that Mr Pan was prepared to contemplate the use of illicit means to inflate the NPAT figure.
- In similar vein, Mr Earle (who was, as I have stated, also a recipient of the email from Mr Navasero dated 29 November 2010) states in paragraph 76 of his affidavit as follows:
"…. The only time I had any conversation at all with regard to Pan or anyone else about an inflated PAT was when, at a meeting in London, CP suggested that there were ways to reach the PAT, and at that time I and Greg Simmons pointed out that there was no situation where we would get involved in anything that compromised PMAH's situation was against the law or underhanded and that was the only conversation I had with regard to anything regarding the PAT number. The comments he made did not specifically refer to Philab or any other order."
- Again, this does not of itself prove that Mr Pan was involved in the fraud and I accept that what Mr Earle says may be said to be somewhat oblique. However, I read what Mr Earle says as indicating that Mr Earle at least understood that Mr Pan was suggesting that the PAT figure might be inflated by improper means and that Mr Earle (and indeed Mr Simmons) had to make it clear that they were not prepared themselves to be involved in any such conduct. At the very least, this provides support for a case that Mr Pan was himself prepared to inflate the NPAT figure artificially which is, of course, consistent with Mr Navasero's evidence.
- Second, although (i) I am prepared to accept for present purposes that Mr Navasero had a strong personal incentive to perpetrate the fraud for his own personal gain and (ii) it is possible at least theoretically that Mr Navasero might have secretly engaged in the NPAT fraud and hid this from Mr Pan, it seems to me inherently unlikely that this was so. Mr Pan admits that he had previously tried to obtain a majority shareholding in EUK through a company called Teledata (Singapore) Limited ("Teledata"). He was therefore familiar with EUK and it seems to me likely that he would have taken a very keen interest in the terms of the proposed take-over by EGL and the execution of the deal in particular because he and his companies stood to make a very substantial gain themselves if the deal went through and specifically if the target NPAT figure was achieved. Further, Mr Navasero's background was electrical engineering whereas Mr Pan's background was in financial services and specifically as an accountant/auditor at Ernst and Young.
- Moreover, it is clear from a number of contemporaneous documents that there was at this time a close relationship between Mr Navasero and Mr Pan in which Mr Navasero reported to Mr Pan. In particular, although (i) it is pleaded in Mr Pan's Defence that "…negotiations in respect of the SPA and NPAT were all conducted by Mr Navasero…" and (ii) Mr Pan gives the impression in his own affidavits that his role was not to "micromanage" but was rather concerned to look for new business, the contemporaneous documents show that he was directly involved in the arrangement and execution of this particular deal. Indeed, this is confirmed by emails in which Mr Pan directly sought to negotiate with EGL the consideration payable under the SPA. For example, in the email of 4 March 2011 sent by Mr Pan as "CEO" of Calypso Capital, he (i.e. Mr Pan) stated: "We need to talk about this, as I believe we have been diluted by about 11 per cent". The contemporaneous documents also show that Mr Pan was involved reviewing the draft SPA agreements and reviewing the public announcement regarding the SPA; and gave specific instructions as to how Calypso Capital would be paid through the Allottees receiving shares. For example, Mr Pan was copied into emails from Mr Navasero which set out the progress with legal documentation regarding the SPA; Mr Pan even criticised Mr Navasero for trespassing into the issues of due diligence.
- In considering this aspect of the case, I should emphasise again that I bear well in mind the argument strongly advanced by Mr Nersessian that given Mr Navasero's difficult financial position, he (i.e. Mr Navasero) had a strong incentive to carry out the fraud for his own benefit because under the Mandate he would receive a much higher payment if the NPAT figure was achieved. I accept that that was indeed the position. However, I remain of the view that given the particular circumstances which I have outlined above, it is inherently unlikely that he would have committed the fraud without the direct involvement of Mr Pan.
- Third, contrary to the strong impression given in Mr Pan's affidavits, the contemporaneous documents show that Mr Pan was directly involved in the audit of EUK for the year end 28 February 2011 which would lead to the NPAT figure. For example:
a. After Mr Navasero sent an email to Mr Taylor-Haw which said "We would appreciate if you could engage the auditors to complete the company's year end audit", Mr Pan sent an email which said "Tom, Don't worry I am on this".
b. On 7 February 2011 Mr Pan sent an email to Mr Taylor-Haw that said "We need to try our hardest to hit the numbers asap and I know you are doing this".
c. On 16 February 2011, Mr Pan was copied into Mr Navasero's email of which sought confirmation that EUK had received an order from Philab.
d. On 11 March 2011 Mr Navasero sent an email to Mr Pan in which he asked "Did we hit the 500k PAT mark?" to which Mr Pan responded the next day "Not sure yet- but still working on it with the accountants".
e. On 16 March 2011, Mr Pan was copied in on email from Mr Taylor-Haw which said: "SRC have the accounts well underway. At first site (sic) it looks as though the PAT will be met. We should have an idea end of play Friday. I am in communication with SRC. We all understand what needs to be achieved and are working together. I have spoken with Nexia Smith Williamson as well and have that under control too. This part is being looked after and is progressing as fast as it can".
f. On 12 May 2011 Mr Pan was copied into an email from Mr Navasero to Mr Taylor-Haw which said: "There is no need to broadcast internal issues to all…I am trying my best to fix your PAT and related party transactions ... I have asked Chris [D] to follow up with The (sic) auditors directly this week".
g. Although Mr Pan denies any knowledge of H Technologies and Grand Prix Design, I note that he was copied into the email of 20 April 2011 which stated that invoices from Grand Prix Design "will be waived in lieu of stock payment".
- Drawing all these threads together and bearing in mind everything that Mr Nersessian has said on behalf of Mr Pan, the conclusion that I have reached is that EGL has amply satisfied the test of "good arguable case".
Material Non-Disclosure/ Misrepresentation
- I have already set out the applicable principles and in particular the high duty upon any applicant when seeking a without notice freezing order.
- Here, Mr Nersessian seeks to rely upon a number of alleged non-disclosures/misrepresentations. I deal with each of these below.
A. Alleged failure to disclose the "personal vendetta" of Mr Navasero against Mr Pan - in particular that Mr Navasero claimed he was owed sums by Mr Pan, had "nothing to lose" and had sought to smear Mr Pan's reputation
- Mr de Verneuil Smith accepted that he did not inform the Court of the alleged vendetta of Mr Navasero against Mr Pan at the without notice hearing. However, in my view, this was not a material non-disclosure. The Court was well aware that Mr Navasero was a self-confessed fraudster who was making very serious accusations against a former business associate. A hostile collapse of the relationship between Mr Pan and Mr Navasero was implicit if not explicit and the need to treat Mr Navasero's evidence with caution was something that was obvious. The Court also knew from Mr Navasero's declaration (which Mr de Verneuil Smith referred to expressly at the without notice hearing and which the Judge indicated she had read) that he stood to gain a substantial proportion of any fees earned by Calypso Capital and thus stood to gain personally from the NPAT fraud.
B. Alleged failure to disclose the email from Mr Navasero dated 28 July 2011 (the "confession" email) which referred to leaving Mr Pan "out of the loop"
- Mr de Verneuil Smith accepted that he did not bring this email to the attention of the Court at the without notice hearing. However, in my view, this was not a material non-disclosure. The email is primarily a statement of personal shortcomings by Mr Navasero made to Mr Ang and Prince Hakeem in the context of Mr Navasero fearing he was going to lose his job. It does not address what Mr Pan knew of the NPAT fraud. The statement "I believe my lack of keeping CP [i.e. Mr Pan] in the loop caused our rift and (sic) friendship" is ambiguous. It is not clear what the "loop" was and it cannot be said that this statement contradicts Mr Navasero's evidence that Mr Pan masterminded the NPAT fraud. Mr Ang's evidence is to the effect that he understood the reference to "loop" to be Mr Navasero's dealings with Prince Hakeem and Tun Daim (Mr Pan's father in law).
C. Alleged failure to disclose the animosity of EGL's Director, Mr Ang, toward Mr Pan and that Mr Ang has threatened to harm Mr Pan and Mr Pan's family
- Mr de Verneil Smith accepted that he did not inform the Court of such alleged "animosity" at the without notice hearing. However, the evidence relied upon by Mr Pan as to threats is weak. The "chat" disclosed by Mr Pan is ambiguous. In any event, such alleged personal animosity and threats are denied by both Mr Ang and by Mr Tan. It is therefore difficult for EGL to have disclosed something which these two individuals both say does not exist and never happened. The Court cannot at this stage determine if any threats were made and therefore cannot determine this allegation of non-disclosure. In such circumstances, I am unable to conclude that there was any material non-disclosure.
D. Alleged failure to explain the deal done for Mr Navasero's assistance
- This is pure supposition on the part of Mr Pan. There is no evidence to support any such "deal" and the evidence is to the contrary. In such circumstances, I am unable to conclude that there was any material non-disclosure.
E. Alleged failure to disclose the "financial troubles" of Mr Navasero
- Mr de Verneuil Smith accepted that he did not inform the Court of the alleged financial troubles of Mr Navasero at the without notice hearing. His submission before me was that this was not a material non-disclosure in particular because EGL has not done a "deal" with Mr Navasero and that this claim in these proceedings will not cause any financial gain to him. I accept for present purposes that EGL has not done a deal with Mr Navasero and that the pursuit and possible success of this claim by EGL will not benefit Mr Navasero – or at least that there is no evidence to such effect. However, I do not accept Mr de Verneuil Smith's submission as formulated. In my view, the fact that Mr Navasero was (or may have been) in a desperate financial position (which appears to have been what Mr Navasero told Mr Ang at least in about July 2011) would seem to provide an important possible motive for perpetrating the fraud for his own benefit and, to that extent, was, in my view, at least potentially relevant and material. However, it seems to me that this was not a significant material non-disclosure because it was plain that Mr Navasero had his own financial interest in perpetrating the fraud and that this was sufficient motive of itself. Of course, if Mr Navasero was in a desperate financial position this would provide an additional incentive to perpetrate the fraud. However, in the context of the case as a whole and the without notice application before the Court, I do not consider that this was significant. Even if this is wrong, I am satisfied that any non-disclosure was unintentional and would not justify the discharge of the freezing order.
F. Alleged failure to disclose implausible statements by Mr Navasero and Mr Simmons
- In my view, there was no material non-disclosure. I do not consider that such statements can properly be described as "implausible" although, of course, the credibility of these statements lies at the heart of the claim in these proceedings.
G. The description of Mr Pan as a "fugitive" was false
- As I have said, Mr Connerty stated that Mr Pan had been reported as a "fugitive" in his first affidavit in support of the without notice application. (According to the note of the hearing before Nicola Davies J, it appears that Mr de Verneuil Smith told the Court that there had been an indication in the Singaporean press that Mr Pan was evading the authorities there. Before me, Mr de Verneuil Smith acknowledged that this had been an error on his part. I accept that such error was unintentional). "Fugative" is a very emotive and indeed highly-charged description. In my view, it means and was obviously intended to convey that Mr Pan was an individual who had fled Singapore in order to evade justice. This description is hotly disputed by Mr Pan. Nevertheless, it seems to me that certainly at the time of the without notice application, EGL had strong grounds for believing that this was indeed the case for the following reasons.
- First, as I have concluded, there is an overwhelmingly strong case that a fraud had been committed by Mr Navasero and, at the very least, a good arguable case that Mr Pan had been involved in such fraud.
- Second, as I have stated, Mr Pan left Singapore some time in August 2011 i.e. shortly after the completion of the SPA and the transfer of shares.
- Third, it is Mr Ang's evidence that such departure was in haste and that Mr Pan "simply vanished".
- Fourth, although not specifically referred to in Mr Connerty's first affidavit, prior to Mr Pan's departure, it appears that the Commercial Affairs Department ("CAD") of the Singaporean police had commenced certain investigations into possible criminal offences committed in relation to the business operations of Teledata at a time when Mr Pan had been the Executive Chairman and the Chief Executive Officer of that company. The precise nature of such possible offences is not entirely clear to me although the fact of such investigations and that the CAD had sought production of certain documents in connection with such investigations was well-known in the press; and the evidence of Mr Ang in an affidavit sworn in response to Mr Pan's second affidavit is that there could be no doubt that Mr Pan had moved to Switzerland to avoid the CAD investigation and "imminent incarceration in Singapore". (Mr Ang also refers to Mr Pan evading various of his creditors and others to whom he was indebted but there is no hard evidence of any such debts). However, I accept that Mr Pan himself was never arrested nor granted bail nor charged with any offence. It appears that as part of such investigations Mr Pan was, at least initially, required to surrender his passport to the Singaporean authorities. The power to require such surrender arises under section 112 of the Singaporean Criminal Code and, as Mr Nersessian acknowledged, it must follow that in order to exercise such power pursuant to such section, the relevant authorities must have considered that they had reasonable grounds for believing that Mr Pan had committed an offence. It is against that background that Mr Pan left Singapore, although it is important to note that the fact that Mr Pan had been required to surrender his passport appears to have been unknown to EGL at the time of the original without notice application.
- Mr Nersessian submitted that this is all irrelevant because prior to his departure, Mr Pan provided a bond of S$250,000 to obtain the return of his passport; the passport was then duly returned to him and thereafter he left Singapore entirely legitimately and with the full knowledge and consent of the Singaporean authorities. Mr Nersessian further submitted that that there is nothing to suggest that Mr Pan has done anything inconsistent with the terms of the bond that has been posted on his behalf and that, as I was told on instructions from Mr Pan, it has throughout remained in place without having been forfeited. Moreover, Mr Nersessian submitted that it was relevant to take into account that even after Mr Pan left Singapore, he has continued to cooperate with the CAD in its investigations as shown by correspondence between the CAD and M&A Law Corporation (Mr Pan's Singaporean Lawyers). Notably, Mr Nersessian referred the Court to a letter from the CAD to Mr Pan personally dated 7 September 2011 in which the CAD thanked Mr Pan for his assistance with the investigation thus far. Thus, Mr Nersessian submitted that there was no question of Mr Pan fleeing from justice or being a "fugitive".
- On Mr Pan's evidence as now submitted to the Court, it does indeed appear that he posted a bond and left Singapore legitimately; that the bond remains in place; and that he has continued to assist the CAD with its investigations from abroad. However, as I have stated, it would appear that such matters were unknown to EGL at the time of the without notice application. As I have said, it was Mr Ang's evidence that Mr Pan "simply vanished". Mr Pan's evidence does indeed confirm that he left Singapore in some haste. For example, in his fourth affidavit, Mr Pan confirms that, although he did not "abandon" his rented apartment, he did terminate his lease early and forfeited a "substantial" deposit. Mr Nersessian submitted that there is nothing sinister or suspicious in this and that once Mr Pan obtained the return of his passport, he simply returned to Switzerland where he resided with his family. According to Mr Pan's evidence, the main reasons he left Singapore were because his wife preferred living in Switzerland and his work permit expired in July 2011. It is true that, as confirmed by Mr Connerty, it was apparently believed by EGL that Mr Pan had a place of residence in Switzerland but, as I have already referred to above, the successive attempts made on behalf of EGL to contact Mr Pan and his wife by letter and email over a period of months in early 2012 proved utterly fruitless. EGL received no response whatsoever. Indeed, as I understand at least one of the letters sent by courier was returned unopened. In this context, Mr Nersessian also drew my attention to certain references in the documents showing that Mr Taylor-Haw of EUK had possibly been in contact with Mr Pan on his mobile phone on at least one occasion during this period. That may be. But this does not seem to be significant so far EGL is concerned with regard to their attempts to locate Mr Pan and to obtain a proper explanation from him as to the events concerning the NPAT figure. It is also significant, in my view, that until very recently Mr Pan has been seeking to conceal the address of his place of residence in Switzerland although this is, he says, because of his fear of the threats that have been made against him and his family.
- Given everything I have said, it would seem that EGL did genuinely believe that Mr Pan had fled Singapore as a fugitive and that even if such description was wrong in fact and thus a material misrepresentation it was unintentional and, in my judgment, does not justify the discharge of the injunction. Even if this is wrong and even if such description was such as to justify the discharge of the injunction, I would have granted a new injunction on the basis of the information now available.
H. The description that Mr Pan's whereabouts were "unknown" was false
- I have already dealt with this in part above. At the time of the without notice application, Mr de Verneuil Smith accepts that EGL did know that Mr Pan had a place of residence in Switzerland. However, EGL did not know whether Mr Pan was in fact residing there at that time and, in any event, did not know the address. Nor did EGL have an address for service in Switzerland – although Mr Pan has now disclosed his address to EGL's legal advisors. Again, I bear in mind that EGL never received any response to the letters sent to CHIL and copied to Mr Pan and his wife. In such circumstances, although further information might have been provided, it was true to say that Mr Pan's whereabouts were "unknown".
I. There was a failure to point out the absence of email corroboration despite Mr Navasero's prolific use of email
- In my view, it was self-evident that EGL could not point to an email which conclusively proved Mr Pan's involvement in the fraud.
J. There was a misleading and out of date position presented as to EGL's finances and adequacy of the cross-undertaking
- At the without notice hearing EGL disclosed the year-end accounts for EGL as at 30 June 2010. It is correct that a copy of the half-year accounts to 30 September 2011 were not produced to the Court at the without notice hearing. However, according to the note of that hearing, Mr de Verneuil Smith then informed the Court that: "…instructions had been received that the accounts were healthier now and at the half year financial statement for 2011 the Group's net asset value had increased to S$17.4m". The above statement was true as shown by the balance sheet for half-year accounts for 30 September 2011. It is also true that as appears from the full year accounts to 31 March 2012, the net asset position had fallen by that date to S$6.2 million but these accounts were not released until 30 May 2012 and so I am at least not sure whether such a fall would have been known to EGL or could have been disclosed at the without notice hearing which, of course, took place on 23 April 2012. Moreover, as Mr de Verneuil Smith explained, this fall is attributable in large part to the provision made in those accounts for the losses suffered by EGL as a result of the fraud.
- As I understood, Mr Nersessian's main attack was not so much with regard to the net asset position but rather with regard to the fact that the "income statement" for EGL showed a loss of S$2.4 million and that such losses had not been disclosed. Mr de Verneuil Smith accepted that such losses had not been disclosed but it does not seem to me that this was material in the circumstances of this case. The crucial point in my view is that there is nothing to suggest that EGL would not be able to make good any losses that the Court might order EGL to pay pursuant to the cross-undertaking. Indeed, there is no suggestion that Mr Pan has suffered any specific financial losses as a result of the injunction other than legal costs which, Mr Nersessian accepted, EGL is, if necessary, able to pay without difficulty. In any event, I have decided that as a condition of continuing the present injunction, it would be my intention to require EGL to fortify its cross-undertaking in an amount to be determined after further argument.
K. There was no valid explanation by EGL for its delay in making the application
- The reasons for the delay between the discovery of the inflated NPAT figure in August 2011 and the without notice hearing before Nicola Davies J (i.e. some 8 months) is explained in paragraphs 32-35 of Mr Connerty's first affidavit. However, Mr Nersessian submitted that EGL's position in this regard was disingenuous given in particular that: (i) the contemporaneous documents show that the fraud was discovered in about early August 2011; (ii) Mr Connerty accepts that EGL initially believed that the fraud was committed by Mr Pan and Mr Navasero alone and that EGL were considering even at that relatively early stage possible injunctive relief against CHIL and also its strategy against others including specifically Mr Pan; and (iii) in such circumstances, the delay in commencing these proceedings and making an application to the Court for a freezing injunction until some 8 months later (i.e. April 2012) is inconsistent with any suggested genuine belief in any risk of dissipation on the part of Mr Pan. In particular, Mr Nersessian submitted that if it was genuinely EGL's objective during this intervening period to allow Mr Pan an opportunity to engage, it could have attempted to contact Mr Pan in his personal capacity, which is of course the capacity in which he is being sued; that Mr Ang's lawyers were in contact with Mr Pan in August and September 2011, but did not raise this matter at all; but that, on the other hand (i) having regarded (albeit wrongly) that their correspondence with CHIL was putting Mr Pan on notice of the claim, (ii) having made a public announcement on 8 December 2011 that it was investigating certain transactions, and (iii) having failed to halt (as they could have done) the transfer process of the shares held by CHIL, it is contradictory then to portray EGL as being concerned as to the dissipation of assets. In making these submissions, Mr Nersessian relied heavily on the general principles which I have already summarised above with regard to delay in particular the passage which I have already quoted from the judgment of HH Judge Waksman QC.
- I accept that these submissions would appear to have some force – at least superficially. However, it seems to me that in the circumstances of the present case, they lack reality. Although it does indeed appear that Mr Ang believed at a relatively early stage that a fraud had been committed involving both Mr Navasero and Mr Pan, there was little specific evidence to support a plea of fraud against at least Mr Pan. (It is perhaps somewhat ironic that even now Mr Nersessian submitted that EGL does not have a "good arguable case.") That is why PKF were apparently instructed and, unsurprisingly, they took several months to carry out their investigations and to produce the PKF Report. Further, it seems to me important to bear in mind that Mr Navasero's signed declaration is only dated 16 February 2012 – and the response from Mr Simmons that I have already referred to above was provided even after that date i.e. 5 March 2012. Nor do I consider that the fact that EGL were copying their letters to CHIL by email to Mr Pan and his wife seeking their responses is inconsistent with a genuine belief in the risk of dissipation. It seems to me that EGL was in a difficult position. Given all the above, I do not consider that the explanation provided by Mr Connerty with regard to the delay is not valid.
L. There was a failure to disclose the true position regarding the risk of dissipation
- I consider the risk of dissipation separately below.
M. The Court should have been informed that the draft PKF Report treated Mr Navasero's declaration with caution
- At the stage of the without notice application, the PKF Report was in draft and EGL was entitled not to disclose it. What the report stated was that Mr Navasero's evidence as contained in his declaration should be treated with "scepticism". That seems self-evident.
N. There was a failure to disclose that Mr Navasero agreed the formulation for consideration in the SPA
- This was not material. Mr Navasero's own declaration stated that he managed all the documentation for the SPA.
- For all these reasons, I am not persuaded that there was any material, non-disclosure or misrepresentation or at least any non-disclosure or misrepresentation which will justify the discharge of the injunction. Even if this is wrong, I should make plain that I would have granted a fresh injunction in any event.
Risk of Dissipation
- I have already set out the relevant principles in relation to risk of dissipation. As to the facts relied upon at the without notice hearing, these were set out in Mr Connerty's first affidavit and were in essence as follows: (i) there was here at least a good arguable case of fraud against Mr Pan; (ii) Mr Pan is an individual who carries out his businesses through a complex web of offshore companies and clearly has the ability to move assets around the world; and (iii) there was evidence of actual dissipation viz following completion of the SPA, the shares received by CHIL under the SPA and allotted to the other companies associated with him under the Mandate were sold within a very short period, some at least at a steep discount.
- In response, Mr Nersessian submitted, in summary, as follows:
a. EGL's position on the risk of dissipation does not rest on solid evidence. It rests on inference, for which there is no proper foundation. Mr Connerty's reliance on share sale transactions following completion of the EUK deal is entirely misplaced and cannot on any footing be used to demonstrate a risk of dissipation of Mr Pan's personal assets for a number of reasons:
i. Mr Connerty seeks to portray the share transfers as being out of the ordinary and an attempt to frustrate any potential claim by EGL. This is incorrect. Calypso Capital was paid for its consultancy services in shares in EGL. It was not paid in cash. Calypso Capital is a consultancy firm and is not in the business of investment. Contrary to Mr Connerty's insinuations, there is nothing significant in the fact that Calypso Capital (and the other Allottees) would have wished to convert those shares into cash as soon as was possible (taking into account the various moratoria imposed by Clause 6.6(d) of the SPA) by selling them. Mr Ang was expressly informed that the intention was to sell the shares: that is precisely why EGL imposed various moratoria on the sale of those shares.
ii. It follows that there is no "remarkable coincidence" in the fact that the share transfers took place at the time when EGL is said to have begun investigating the EUK deal because that investigation appears to have begun shortly after completion of the SPA. Mr Connerty seeks to draw a link between the two occurrences where there simply is none.
iii. In any event, EGL's assertion that the transfer of the shares can be inferred to have been an attempt to frustrate a legal claim is grasping at straws. As is amply demonstrated by the current claim against Mr Pan, sale of the shares does nothing to prevent EGL seeking relief in its claim for monetary damages.
iv. Moreover, the only relevant risk of dissipation must be a risk of dissipation of Mr Pan's personal assets given that the claim being made is against him personally. The transactions being highlighted by EGL show no such thing. They show company assets being converted into cash.
v. EGL failed to disclose the fact that it was within its power to prevent these share sales because it had allotted the shares by issuing physical certificates, rather than completing the transaction electronically. This is highly significant to EGL's case on dissipation because EGL needed to sign and to approve the transfer of the shares before any sale by Allottees could complete. The shares that were held by Calypso Group were only fully registered on 20 December 2011, which means that EGL must have had to sign off the issuance of those shares shortly before that date.
vi. Mr Connerty's description of Mr Pan's position as being a "simple denial" that the disposals were suspicious is gross over-simplification. The burden of proof is on EGL to prove that there is a real risk of dissipation. It has sought to do this by describing it as a "remarkable coincidence" that Mr Pan sought to convert the shares that had been allocated to companies under his control into cash. Mr Pan demonstrates by reference to the evidence that there is nothing remarkable about the sales or their timing. Mr Connerty's attempts to revive an already confused position only goes further to expose the weakness in EGL's case. By way of summary:
1. The relevance of the transaction with Mr Tan is that Mr Ang was involved in it and evidently saw nothing remarkable or coincidental about it.
2. Mr Ang's position is contradicted by Mr Navasero who states that it was always Mr Pan's intention to liquidate the shares and thereby supporting Mr Pan's position that the transactions were in the normal course of the Calypso companies' business.
3. There is no evidence to demonstrate that Mr Pan has done anything other than deal with his assets in the normal course. The fact that he is said to have little by way of substantial assets is not demonstrative of a risk of dissipation. In fact, it is a factor pointing away from a need to have a freezing order at all.
4. EGL has no evidence of any attempt by Mr Pan to dissipate his personal assets, other than by inference by reason of the allegations of dishonesty against him and reliance on their misleading and baseless portrayal of him as a dishonest character.
- I am rather persuaded by Mr Nersessian's submissions that the reliance put by Mr Connerty in his first affidavit on the disposal of the shares to show actual dissipation otherwise than in the ordinary course of business is, or at least may be, misplaced. Although the position remains somewhat unclear, I am prepared to accept for present purposes in favour of Mr Pan that it was always the intention to sell these shares shortly after completion of the SPA and that although the prices apparently obtained for at least some of these shares were below market price, this was because of the large volumes of shares involved and the fact that they were sold by private treaty.
- However, I do not consider that this is determinative in the circumstances of the present case. It is clear from the authorities that the grant of a freezing injunction is not dependent upon proof of actual historic dissipation. Indeed, in the vast majority of cases, this is not established. Rather, the Court is concerned with the risk of dissipation. Of course, as appears from the authorities cited above (in particular The Neidersachsen and Thane v Tomlinson), bare assertions to such effect will generally carry no weight and there must be solid evidence of the risk of dissipation. However, I am satisfied that there was and remains such risk of dissipation for the following reasons:
a. First, this is a case where, as I have concluded, there is at the very least a good arguable case of fraud against Mr Pan. I accept, of course, that this of itself does not necessarily lead to a conclusion that there is a risk of dissipation of assets and I bear well in mind the cautionary words of the Court of Appeal in Thane v Tomlinson in particular at paragraph 28. However, it seems to me that in the particular circumstances of the present case, this is a relevant consideration.
b. Second, there is no doubt that Mr Pan is a highly sophisticated individual who operates his business interests in different jurisdictions through a web of offshore companies, including in the BVI. It is common ground that he has residences in at least London and Switzerland although, as I have said, the actual location of his residence in Switzerland was, until recently, unknown.
c. Third, although I have accepted for present purposes that the disposal of the shares after completion of the SPA does not justify the inference of actual historic dissipation of assets otherwise than in the ordinary course of business, nevertheless such disposal provides strong proof of an ability to deal with assets at relatively short notice.
d. Fourth, the circumstances in which Mr Pan left Singapore and the failure by both him and his wife to respond to the letters sent by EGL as I have described above certainly were important considerations at least at the stage of the without notice application although I accept that in the light of Mr Pan's explanations such considerations are or may no longer be valid in fact. For example, on Mr Pan's evidence, there is an entirely innocent explanation as to why he (or his wife) never responded to the letters sent by EGL.
- In my judgment, these matters taken cumulatively certainly justified a conclusion at the without notice hearing of a sufficient risk of dissipation of assets which would justify the grant of a freezing injunction. Further, in my judgment, the position is even stronger now. In particular, as I have stated, it is now known that Mr Pan sold his interest in Calypso Group (and therefore also his indirect interest in Calypso Capital) on 18 August 2011, the same date as he resigned as a director. It is not known and Mr Pan has not stated what he received personally by way of consideration in such transaction but given that both these companies were entitled to receive shares from EGL under the Mandate, it seems to me that that the consideration he received was unlikely to be insignificant. However, if the information given by Mr Pan in his affidavit of assets which he provided belatedly pursuant to paragraph 9 of the freezing injunction is true, virtually all of that has disappeared. The question then arises: where has that money/assets gone? The evidence from Mr Pan is that the proceeds of the sale of the shares in EGL allocated to CHIL, Calypso Group, Calypso Capital and Sharp Consultants Limited were approximately S$2.5 million and were all spent by those companies. Mr Pan does specify some S$710,000 of expenditure relating to bills, overheads, costs and wages (including approximately S$600,000 in fees to Mr Navasero). However, as to the rest, he simply states vaguely: "….the balance of funds was subsequently invested in unsuccessful commercial deals pursued in the course of those companies' businesses, including a failed telecoms investment". However, he gives very little detail about the money/assets which he received in his personal capacity when he sold his interest in Calypso Group and his indirect interest in Calypso Capital. Similar questions arise in relation to the disposal of shares in CHIL by Mr Pan and his wife in February 2012.
- I fully recognise that these matters do not of themselves necessarily prove actual historic dissipation by Mr Pan otherwise than in the ordinary course of business. But, in my judgment, they cannot be ignored or dismissed as mere bare assertion or matters of speculation. On the contrary, in my judgment, they do at least further support the conclusion that there is here a risk of dissipation which forms part of the whole evidence and which the Court can and should take into account when considering whether or not to grant or to continue a freezing injunction.
Inadequacy of Cross-Undertaking in Damages
- I have already dealt with this aspect in the context of Mr Nersessian's submissions in relation to material non-disclosure.
Just and Convenient
- Having considered the various individual aspects relied upon by Mr Nersessian in support of Mr Pan's application that the freezing injunction be discharged, it is in my view necessary to stand back and to consider overall what is just and convenient which is, of course, the statutory test. In my judgment, that test is amply satisfied in the circumstances of the present case. In this context, Mr Nersessian forcefully submitted that even if I were to conclude that EGL had a good arguable case in fraud against Mr Pan, in exercising its discretion, the Court can and should have regard to the fact that Mr Pan has a good arguable case and give this proper weight when considering what is just and convenient. I am prepared to accept that submission. Nevertheless, I remain of the view that this is a case where it is just and convenient to continue the freezing injunction and, subject to hearing further argument with regard to fortification of the cross-undertaking in damages, it is my conclusion that the application made on behalf of Mr Pan should therefore be dismissed.
Application for Order for Further Disclosure
- I now turn to deal with EGL's application for further disclosure. The original order made by Nicola Davies J at the without notice hearing provided in material part as follows:
"9. Unless paragraph 10 applies, the Defendant must within 48 hours of service of this Order and to the best of his ability inform the Claimant's solicitors of all his assets worldwide which exceed £500, whether in his own name or not and whether solely or jointly owned, giving the value, location and details of all such assets.
10. If the provision is likely to incriminate the Defendant, he may be entitled to refuse to provide it, but it is recommended to take legal advice before refusing to provide the information. Wrongful refusal to provide information is contempt of Court and may render the Defendant liable to be imprisoned, fined or have his assets seized.
11. Within 5 (five) working days after being served with this Order, the Defendant must swear and serve on the Claimant's solicitors an affidavit setting out the above information."
- As I have already stated, an affidavit was eventually sworn pursuant to that part of the order by Mr Pan on 6 June 2012. The language of that affidavit is in the present tense and purports to state the position as at the date when the affidavit was sworn – or possibly might be taken as stating the position on 1 June 2012 when it was served in unsworn form. In any event, it seems to me deficient because it was served late (there was never any application to vary the order) and does not purport to state the position when it ought to have been served i.e. by 25 April 2012. In my judgment, this is most unsatisfactory because of the possibility that assets may have been disposed of between that date and 6 June 2012. On that basis, it seems to me that a new affidavit must be served to state the position as at the date when it ought to have been served i.e. 25 April 2012.
- Following service of that affidavit of assets, EGL's solicitors wrote to Mr Pan's solicitors identifying what they said were certain deficiencies in that affidavit. This gave rise to further correspondence and a further affidavit from Mr Pan. Notwithstanding, EGL's position was that certain deficiencies remained. Hence, the present application. In particular, Mr de Verneuil Smith submitted the following serious deficiencies remain and justify further specific orders for further information viz:
a. Mr Pan alleges that the proceeds of the sale of the shares in EGL allocated to CHIL, Calypso Group, Calypso Capital and Sharp Consultants Limited were S$2.5 million and were all spent by those companies. Mr Pan does not explain adequately how such a sum was dissipated. He opaquely refers to "the balance of funds was subsequently invested in unsuccessful commercial deals pursued in the course of those companies' businesses, including a failed telecoms investment". That is not sufficient information for the Court to police the freezing injunction. Equally Mr Pan's explanation for the dissipation of £250,000 that he personally received from Capital Group is general ("These payments were used to defray personal and business expenses during the transaction") and not credible; no detail whatsoever is given to support such high expenses incurred during the negotiation and execution of the SPA. Mr Pan should provide proper details of the proceeds of sale of consideration shares insofar as he can.
b. Whilst Mr Pan alleges that he sold his beneficial interests in Calypso Capital, Calypso Group and CHIL he has not disclosed to whom and for what consideration. His response to the Part 18 Request made by C regarding these issues was evasive. This information should be disclosed as these "sales" ought to have generated consideration which was paid to Mr Pan.
c. Mr Pan's list of bank accounts does not disclose a bank account for Singaporean dollars. This is not credible given Mr Pan's own evidence that "I spent heavily whilst I was there [Singapore]". Mr Pan should identify all of his bank accounts.
d. It is difficult to believe that Mr Pan is living in Switzerland, sending his children to school in Switzerland, funding litigation in Singapore and funding the defence of this litigation in circumstances where his alleged net liquid assets are around £15,000 and CHF 1,900. Mr Pan should identify all of his sources of income.
- I should make plain that, in my view, these are not properly described as "deficiencies" in respect of the affidavits already sworn by Mr Pan. In particular, it seems to me that the information now sought as set out above falls without the order made by Nicola Davies J. This is important because it therefore follows that, contrary to assertions made in the correspondence, I do not consider that it can properly be said (at least so far as these alleged deficiencies are concerned) that Mr Pan was in breach of that order.
- Nevertheless, Mr Nersessian accepted that the Court had jurisdiction to make these orders under s.37 of the Senior Courts Act 1981 although he submitted that an order should only be made if "just and convenient" and, for present purposes, this could only be so if it was necessary to for the purposes of "policing" the freezing injunction. I agree.
- In my judgment, I do not consider that it would be "just and convenient", at least at this stage of the proceedings, to make any order in relation to the alleged deficiencies referred to in subparagraphs 86c. and d. above. As to sub-paragraph 86c., Mr Pan has confirmed that he no longer has any other relevant bank accounts as requested; and, as to sub-paragraph 86d., I see no reason why Mr Pan should be ordered to provide such information at least at present. I therefore propose to dismiss the applications made for such further information but give EGL liberty to apply.
- However, I am persuaded that it is in principle "just and convenient" to make the orders sought in respect of the information referred to in sub-paragraphs 86a. and b. above. In my judgment, given the circumstances of the present case, such information is necessary at least in part in order properly to "police" the freezing injunction. At the hearing, I indicated what I considered to be an appropriate form of wording which I hope can be agreed and provided to me in draft form for my approval.
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