[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
English and Welsh Courts - Miscellaneous |
||
You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> Smith v Marston Holdings Ltd & Anor [2020] EW Misc 23 (CC) (06 October 2020) URL: http://www.bailii.org/ew/cases/Misc/2020/23.html Cite as: [2020] EW Misc 23 (CC) |
[New search] [Context] [View without highlighting] [Printable PDF version] [Help]
Neutral Citation Number: [2020] EW Misc 23 (CC)
Case No: G00BS238
Case No: G00BS470
Case No: G00BS661
Case No: G00BS662
Case No: G01BS153
IN THE COUNTY COURT AT BRISTOL
BUSINESS AND PROPERTY WORK
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
Date: 06/10/2020
Before :
HHJ PAUL MATTHEWS
- - - - - - - - - - - - - - - - - - - - -
Between :
|
DAVID SMITH |
Applicant |
|
- and - |
|
|
RUSSELL MALVERN LTD |
Respondent |
- - - - - - - - - - - - - - - - - - - - -
And between :
|
DAVID SMITH |
Applicant |
|
- and - |
|
|
(1) KINLOSS PROPERTY LTD (UK), (2) KINLOSS PROPERTY LTD (BVI) |
Respondent |
- - - - - - - - - - - - - - - - - - - - -
And between :
|
DAVID SMITH |
Applicant |
|
- and - |
|
|
MARSTON HOLDINGS LIMITED |
Respondent |
- - - - - - - - - - - - - - - - - - - - -
And between :
|
(1) DAVID SMITH (2) TUSCANY TRUST HOLDINGS TRUSTEES |
Applicant |
|
- and - |
|
|
(1) THE MINISTRY OF JUSTICE (2) LESLIE GAYLE-CHILDS |
Respondent |
- - - - - - - - - - - - - - - - - - - - -
And between :
|
KINLOSS PROPERTY LIMITED |
Applicant |
|
- and - |
|
|
(1) COMPANIES HOUSE (2) THE REGISTRAR OF COMPANIES |
Respondent |
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Timothy Becker (instructed by Nathan Paralegals and Company LLP) for the Applicant(s) in each case
Christopher Edwards (instructed by Reynolds Colman Bradley LLP) for the Respondent Russell Malvern Ltd
Maria Mulla (instructed by Marston Holdings Ltd Legal Department) for the Respondent Marston Holdings Limited
Joseph Edwards (instructed by The Government Legal Department) for the Respondents The Ministry of Justice and the Registrar of Companies
Hearing dates: 24 September 2020
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved
Covid-19 Protocol: This judgment was handed down by the judge remotely by circulation to the parties’ representatives by email and release to BAILII on the date shown at 1:30 pm.
HHJ Paul Matthews :
Introduction
i) Smith v Russell Malvern Ltd, G00BS238
ii) Smith v (1) Kinloss Property Ltd (UK), (2) Kinloss Property Ltd (BVI), G00BS470
iii) Smith v Marston Holdings Ltd, G00BS661
iv) Smith v (1) The Ministry of Justice, (2) Leslie Gayle-Childs, G00BS662
v) Kinloss Property Ltd v The Registrar of Companies, G01BS153.
2. The application for the disclosure of copy documents from the court file arose in the second case above, Smith v (1) Kinloss Property Ltd (UK), (2) Kinloss Property Ltd (BVI). The application to add a further applicant to the pre-action disclosure application arose in the third case above, Smith v Marston Holdings Ltd. As it turned out, I did not have to make a substantive decision in the first two matters listed above, for reasons which I shall explain. In relation to the other three matters, which were argued before me, I announced at the end of the hearing that those applications would all be dismissed, as totally without merit, my reasons to be given in writing at a later date. These are those reasons, which also refer briefly to the other two matters.
Procedure
5. However, no such hearing bundle, skeleton argument and costs schedule were sent in relation to the fifth case, Smith v (1) Kinloss Property Ltd (UK), (2) Kinloss Property Ltd (BVI), G00BS470. In that case, emails had been sent to the court in the name of Mr Smith on 22 September 2020 at 1257 and on 23 September 2020 at 2048. In the former email Mr Smith’s name appeared directly above that of “DEZ Trust Holdings Trustees”, and the sending email address had the domain name “deztrustholdingstrustees.com”, whereas in the latter email Mr Smith’s name appeared directly above that of “Tuscany Trust Holdings Trustees” and the email address from which the email was sent was tuscanytrustees@gmail.com.
The hearing
Nathan Paralegals
“Nathan Paralegals and Company, Paine Crow and Partners a LNAC Trading names of Paine Crow and Associates (a Cayman Islands company)”.
The identity of David Smith
Mr Becker’s instructions
Address for service
“(1) A party to proceedings must give an address at which that party may be served with documents relating to those proceedings. The address must include a full postcode or its equivalent in any EEA state (if applicable) unless the court orders otherwise.
(2) Except where any other rule or practice direction makes different provision, a party’s address for service must be –
(a) the business address either within the United Kingdom or any other EEA state of a solicitor acting for the party to be served; or
(b) the business address in any EEA state of a European Lawyer nominated to accept service of documents; or
(c) where there is no solicitor acting for the party or no European Lawyer nominated to accept service of documents –
(i) an address within the United Kingdom at which the party resides or carries on business; or
(ii) an address within any other EEA state at which the party resides or carries on business.
[ … ]”
“It should be noted that where a solicitor’s or European lawyer’s address is not given under (2)(a) or (b) the address must be an address within the UK or EEA state at which the party resides or carries on business. The precise wording of this rule is important because on occasions defendants attempt to give a PO box address as an address for service. However, a person cannot ‘reside’ at or ‘carry on business’ at a PO box although such a business might be carried on by using such a PO box address. In the circumstances a PO box would not be a valid address for service under that rule.”
The relevant law
Civil Procedure Rules
28. These applications are brought under CPR rule 31.16, which provides as follows:
“(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.
(2) The application must be supported by evidence.
(3) The court may make an order under this rule only where–
(a) the respondent is likely to be a party to subsequent proceedings;
(b) the applicant is also likely to be a party to those proceedings;
(c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and
(d) disclosure before proceedings have started is desirable in order to –
(i) dispose fairly of the anticipated proceedings;
(ii) assist the dispute to be resolved without proceedings; or
(iii) save costs.
(4) An order under this rule must –
(a) specify the documents or the classes of documents which the respondent must disclose; and
(b) require him, when making disclosure, to specify any of those documents –
(i) which are no longer in his control; or
(ii) in respect of which he claims a right or duty to withhold inspection.
(5) Such an order may –
(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and
(b) specify the time and place for disclosure and inspection.”
Caselaw
29. This rule has been considered by the courts in a number of decisions. The leading case is Black v Sumitomo Corporation [2002] 1 WLR 1562. However, for present purposes, I need only refer to Smith v Secretary of State for Energy and Climate Change [2013] EWCA Civ 1585, which discusses that authority. In that case Underhill LJ (with whom Longmore and Floyd LJJ agreed) said:
“5. Authoritative guidance on the meaning and effect of CPR 31.16 is to be found in the judgment of Rix LJ in this Court in Black v Sumitomo Corporation [2002] 1 WLR 1562 ([2001] EWCA Civ 1819) - though, as will appear, it has been argued that he leaves an important question unanswered. The relevant parts of Rix LJ’s judgment for present purposes can be summarised as follows:
(1) He starts his general discussion by summarising, at paras. 49-50 of his judgment, the recommendations of Lord Woolf’s “Access to Justice” report which lie behind CPR 31.16. Paras. 51-58 are concerned with a question which is irrelevant to the issue before us.
(2) At paras. 59-68 he reviews the authorities on the provisions as they stood prior to 1998 (see para. 8 above). Most of this passage is immaterial for present purposes, but I should set out para. 68, which reads:
“What … these authorities on the unamended section in my judgment reveal, and usefully so, is as follows. First, that at any rate in its origin the power to grant pre-trial disclosure was not intended to assist only those who could already plead a cause of action to improve their pleadings, but also those who needed disclosure as a vital step in deciding whether to litigate at all or as a vital ingredient in the pleading of their case. Secondly, however, that (as what I would call a matter of discretion) it was highly relevant in those cases that the injury was clear and called for examination of the documents in question, the disclosure requested was narrowly focused and bore directly on the injury complained of and responsibility for it, and the documents would be decisive on the conduct or even the existence of the litigation. Thirdly, that on the question of discretion, it was material that a prospective claimant in need of legal aid might be unable even to commence proceedings without the help of pre-action disclosure.”
(3) Rix LJ turns to the current regime at para. 69 of his judgment. He says:
“I now turn to the amended section 33 (2) and the current rule of court, and will consider first of all the jurisdictional thresholds which have to be passed (“only where”) in order to vest a court with discretion to make an order for pre-trial disclosure.”
It is worth spelling out that that way of putting it recognises that the structure of CPR 31.16 formally requires a two-stage approach. The first stage is to establish whether the jurisdictional thresholds prescribed by heads (a)-(d) are satisfied. If they are, the Court proceeds as a second stage to consider whether, as a matter of discretion, an order for disclosure should be made.
(4) He then proceeds to consider heads (a)-(d) in turn. He takes (a) and (b) together. The passage begins as follows:
“70. The application has to be made by “a person … likely to be a party to subsequent proceedings” against “a person … likely to be a party to the proceedings” (section 33 (2)) and those requirements are reflected (in reverse order) in CPR r 31.16 (3) (a) and (b). There is no longer any statutory requirement that ‘a claim … is likely to be made’.”
71. Of course, in one sense it might be said that a person is hardly likely to be a party to subsequent proceedings whether as a claimant or otherwise unless some form of proceedings is itself likely to be issued. Two questions, however, arise. One is whether the statute requires that it be likely that proceedings are issued, or only that the persons concerned are likely to be parties if subsequent proceedings are issued. The other is whether “likely” means “more probably than not” or “may well”. As to the first question, in my judgment the amended statute means no more than that the persons concerned are likely to be parties in proceedings if those proceedings are issued. That was what Lord Woolf had in mind when he wrote of the requirement that “there is a likelihood that the respondent would indeed be a defendant if proceedings were initiated” (in Section III, para 50, of his final “Access to Justice” report, ...). The omission of any language which expressly requires that the initiation of proceedings itself be likely, which could have been included in the amended section, appears to me to reflect the difficulties which the earlier authorities had explored in the sort of circumstances found in Dunning v United Liverpool Hospitals' Board of Governors [1973] 1 WLR 586. What the current language of the section appears to me to emphasise, as does the rule of court, is that the parties concerned in an application are parties who would be likely to be involved if proceedings ensued. The concern is that pre-action disclosure would be sought against a stranger to any possible proceedings, or by a party who would himself be unlikely to be involved. If the statute and rule are understood in this sense, then all difficulties, which might arise where the issue of proceedings might depend crucially on the nature of the disclosure sought and where it is impossible at the time of making the application to say whether the disclosure would critically support or undermine the prospective claim, disappear.
(5) At para. 72 he addresses the second of the two questions adumbrated at the start of para. 71, namely what is meant by “likely”. He points out that that question loses most of its significance by reason of his answer to the first question; but he says that if necessary he would read it as meaning “may well”, i.e. as opposed to “more likely than not”. At para. 73 he says:
“… In my view, apart from the two issues of principle which present themselves and which I have sought to answer in this section of my judgment, the word itself presents no difficulties. Temptations to gloss the statutory language should be resisted. The jurisdictional threshold is not, I think, intended to be a high one. The real question is likely to be one of discretion, and answering the jurisdictional question in the affirmative is unlikely in itself to give the judge much of a steer as to the correct exercise of his power.”
(7) What Rix LJ says about head (c) is immaterial for present purposes. Nor is head (d) directly material; but in his very full analysis in paras. 79-83 he teases out the difficulties caused by what is clearly framed as a jurisdictional requirement being dependent on the exercise of a judgment about “desirability” and in that context notes that it is important to separate out the truly jurisdictional condition, which may be relatively easily satisfied, from the subsequent discretionary exercise: see para. 82 (at p. 1586 F-G).
(8) Having found that the Court had jurisdiction to consider the application Rix LJ proceeds finally at paras. 87-101 (pp. 1587-1592) to consider whether disclosure should be ordered in the exercise of its discretion. He holds that the application should be dismissed, essentially because the prospective claim was “speculative in the extreme” and the request for disclosure very wide-ranging. It is worth noting that he does not regard the fact that a claim might be characterised as “somewhat speculative” as necessarily fatal to an order for disclosure. Rather, it is a factor going into the discretionary balance. He says, at para. 95 (p. 1590):
30. Later in his judgment, Underhill LJ said:
“23. … The jurisdictional requirements for the making of an order under CPR 31.16 are expressly set out at heads (a)-(d) in para. (3) of the rule, and they say nothing about the applicant having to establish some minimum level of arguability. If such a requirement exists it can only be implicit, and I see no basis for making any such implication. If heads (a)-(b) required an applicant to show that it was likely that proceedings would be commenced I could see an argument that that necessarily involved showing that the putative proceedings had some chance of success (because people are not likely to start hopeless cases). But it is clear from Black v Sumitomo that there is no such requirement: all that has to be shown is that it is likely that the respondent would be a party to such proceedings if commenced (see para. 71 of Rix LJ’s judgment - para. 10 (4) above). I accept of course that it cannot have been the intention of the rule-maker that a party should be entitled to pre-action disclosure in circumstances where there was no prospect of his being able to establish a viable claim; but in such a case disclosure could and no doubt would be refused in the exercise of the discretion which arises at the second stage of the enquiry.
24. That seems to me not only to be the right approach on a straightforward reading of the rule but also to be more satisfactory in practice. If there were a jurisdictional requirement of a minimum level of arguability the question would necessarily arise of how the height of the threshold is to be described. But abstract arguments of that kind tend to be arid and unhelpful. It is inherently better that questions about the likelihood of the applicant being able in due course to establish a viable claim are considered as part of a flexible exercise of the court’s discretion in the context of the particular case.”
Proceedings in good faith?
33. This seems to me to be a recipe for unduly complicating, as well as lengthening, applications for pre-action disclosure, which is undesirable. As Longmore LJ said in Smith v Secretary of State for Energy and Climate Change [2013] EWCA Civ 1585,
“39. … Applications for pre-action disclosure are not meant to be a mini-trial of the action and should be disposed of swiftly and economically. Elaborate arguments are to be discouraged; I hope that my Lord's judgment will mean that in the future these applications can be disposed of without resort to the appellate process.”
Since, as Underhill LJ said in Smith, there is a discretion to be exercised once the threshold is crossed, and the strength of the claim can be taken into account at that stage, I respectfully doubt the utility of a further requirement that the contemplated proceedings should also be brought in good faith. However, as will be seen, in the circumstances of this case it is not necessary for me to deal substantively with this argument, and I therefore leave it for another occasion on which it matters.
34. I turn now to consider each of the three remaining applications in turn.
Smith v Marston Holdings Ltd, G00BS661
35. In Smith v Marston Holdings Ltd, the application notice is dated 6 April 2020, and is supported by a witness statement from Mr Smith of the same date. The relief sought by the notice is:
“That the Court orders that the Defendant disclose the documents which are or have been in his control pursuant to CPR 31.16. Because the documents electronic or otherwise holds evidence that furthers the Applicant’s claim in the interests of the administration of justice and/or in the consequence of CPR 1.1 the overriding objective.”
“1. I am the trustee and assignee of this cause of action from Miss Althia Childs (the Assignor) …
[ … ]
3. I make this witness statement in support of the Claimant’s application for an order for this Court for pre-action disclosure of the authority held on trust by the Second Defendant for the First Defendant in relation to specific computer hard drives and portable data storage devices.
[ … ]
18. In the consequence of CPR Part 31, I submit this application for disclosure of electronic documents or otherwise namely evidence of the suspension of enforcement by TfL I believe is vital evidence and would therefore be able to provide first-hand witness testimony as to how the Defendant unilaterally acted to take enforcement without TfL’s permission.
19. The Claimant seeks disclosure of the authority relied on by the Defendant’s several employees on 4 February 2020 at the Assignor address, when TfL stated that there was no lifting of the suspension of the enforcement due to material evidence that the debtor sought did not live at the Assignor address.”
38. The draft order accompanying the notice and statement seeks an order that:
“The Defendant do forthwith file and serve within 14 days of the receipt of this order all electronic documents namely evidence that stated that there was a material lifting of the suspension of enforcement against the Assignor contrary to 10 September 2019 when TfL informed the Assignor in writing that TfL had suspended enforcement indefinitely.”
43. The next question is whether the documents sought are likely to disclosable in the contemplated proceedings in the ordinary way under CPR Part 31. The description in the application notice of documents sought is entirely unspecific and does not enable the court to decide whether they would be disclosable. It is a form of description that has been used before in other cases brought in Bristol by Mr Smith (see eg Smith v Reynolds Porter Chamberlain LLP [2020] EW Misc 11 (CC)). The description in the draft order is more specific, namely
“all electronic documents namely evidence that stated that there was a material lifting of the suspension of enforcement against the Assignor.”
“disclosure of electronic documents or otherwise namely evidence of the suspension of enforcement by TfL”,
which appears to be the same in substance as in the draft order. Paragraph 19 seeks “the authority relied on by the Defendant’s several employees on 4 February 2020 at the Assignor address, when TfL stated that there was no lifting of the suspension of the enforcement”. This appears also to be in substance the same, and a reference to the statement by Ms Morina at paragraph 6(h) of her first witness statement that
“on 24 and 27 January 2020, a note was left on the Defendant’s system requesting that the Defendant recommence the enforcement of all four WOC that were on hold.”
“that on 27 January 2020 the cases that related to the WOC issued by TFL were removed from the status of being on hold due to an administration error…”
48. Accordingly, I dismiss this application as totally without merit.
Smith v (1) The Ministry of Justice, (2) Leslie Gayle-Childs, G00BS662
“That the Court orders that the Defendant disclose the documents which are or have been in his control pursuant to CPR 31.16. Because the documents electronic or otherwise holds evidence that furthers the Applicant’s claim in the interests of the administration of justice and/or in the consequence of CPR 1.1 the overriding objective.”
This is identical to the relief sought in the notice in the Marston Holdings case. It is notable for ignoring that there are in fact two defendants/respondents to this application. But it is obvious that the Ministry of Justice is the party against whom the pre-action disclosure is sought.
“3. I make this witness statement in support of my application for an order for this Court for pre-action disclosure of the electronic records, documents or otherwise held on specific computer hard drives and portable data storage devices controlled by the Defendant which would provide information and clarity in order to narrow the legal issues pursuant to this cause of action and in the interests of the administration of justice.
[ … ]
16. In the consequence of CPR Part 31, I submit this application for disclosure of documents electronic or otherwise held by the first Defendant that provides material information on causative effect following the conduct by the first Defendant’s employees which resulted in the seizure and dissipation of the unknown whereabouts of the 80,000 financial and legally privileged documents and exhibits held on trust in a purported secure location within HMP Wayland.
17. Moreover, I therefore believe vital evidence pursuant to a disclosure order would be able to narrow down the issues and facts of the cause of action prior to my seeking relief from the courts on the substantive grounds I intend to rely on.
18. I now seek the disclosure by the first Defendant of all the records both electronic or otherwise and/or the reporting processes relied on in order to record and store the material 80,000 financial and legally privileged documents and exhibits the second Defendant instructed Paine Crow and Partners to provide to be released into the Court’s custody which caused significant financial loss, harm, damage to property due to the reckless and unconscionable failure by the first Defendant to prevent the loss of the material property pursuant to CPR 31.16.”
51. The draft order accompanying the notice and statement seeks an order that:
“The Defendant the Ministry of Justice do forthwith file and serve within 14 days of receipt of this order:
(a) all electronic and/or paper documents prior and post acknowledgment of the unknown whereabouts of the 80,000 financial and legally privileged documents and exhibits held on trust; and
(b) evidence of what steps the first Defendant has taken in the consequence of the findings and acknowledgment of the unknown whereabouts of the 80,000 financial and legally privileged documents and exhibits held on trust.”
54. As it happens, we in Bristol have also in the past dealt with claims brought in Ms Robinson’s name. These include Robinson v Shaban and the State of Libya, G00BS090, another pre-action disclosure application, which was transferred to the High Court in London in April 2020. They also include two other claims bearing strong similarities to the Smith v Kinloss Property Ltd case above, because Ms Robinson in each case was suing two companies with the same name, one a UK company and the other a BVI company. They were Robinson v Capitana Seas Ltd, F01BS422, and Robinson v Ashton Global Investments Ltd, F01BS779. In these proceedings Ms Robinson’s addresses are variously given as the same Bristol residential address as Mr Smith in Smith v Whiting Timmis and Partners and Smith v Heritage, already mentioned, 2 Gloucester Terrace Leeds LS12 2TJ (the address of Leeds Prison), the same accommodation address in Belfast as Mr Gayle-Childs has used in this case, and also care of “Paine Crow and Partners LLP , Unit 601, 394 Muswell Hill Broadway, London N10”. I note that, in his judgment in Gayle-Childs v Timmis [2013] EWHC 4283 (Ch), to which I refer below in more detail, Newey J (as he then was) said that Ms Sara Louise Robinson was described by Mr Gayle-Childs in his evidence in that case as his “partner”: see at [18].
57. Yet the evidence of Mr Perry is that Paine Crow and Associates was an entity registered at (UK) Companies House, which was dissolved in April 2014. In his judgment in Gayle-Childs v HM Treasury [2015] EWHC 2747 (Ch), referred to below, Newey J refers at [28] to an order of his dated 12 June 2015 reciting that a search of the Law Society’s online database showed that an entity called Paine Crow and Partners LLP was struck off the register in April 2014. Mr Perry’s evidence was that Paine Crow and Associates had the same registered company number as Paine Crow and Partners. Of course, it may be that the same name has subsequently been used to form an entity in the Cayman Islands.
64. In Gayle-Childs v Timmis [2013] EWHC 4283 (Ch), Newey J struck out two claims against two separate defendants, Mrs Timmis and Mrs McKendrick, in relation to a payment of £100,000 in 2008 to a bank account in the name of “Heritage”. (Both Timmis and Heritage are of course names that have already featured in this judgment.) In relation to Mrs Timmis, he did so on two grounds. The first was that the claimant had already assigned the claim to a company called GC Financial (London) Limited. The second was that he had thereafter been made bankrupt, so that any claims would have vested in the trustee in bankruptcy for the benefit of his creditors. In the other case only the first reason applied. However, in the course of that judgment, the judge also said this:
“2. The claimant in the Timmis case is named in the claim form as “Q Leslie Gayle Childs” and in his witness statement as “Quinton Leslie Gayle Childs” and “Quinton Leslie Alphonso Gayle-Childs”. In the Kenrick case, the claimant is identified in the claim form as “Leslie Gayle-Childs” and in his witness statements as “Leslie Gayle-Childs” and “Leslie Alphonso Gayle-Childs”. There is, as I understand it, no issue but that the claimant in the two cases is the same individual.
3. Various proceedings have been instituted in respect of the £100,000 in the past. In January 2010, 32 cases brought by “Quinton Leslie Childs” were listed before District Judge Silverman in the Edmonton County Court. Five of these cases related to Heritage, and in each of the cases that involved Mrs Timmis the complaint related to a £100,000 payment that was said to have been made into a Heritage account with Lloyds TSB on 3 April 2008 and shared with Mrs Timmis. Three of the five cases were struck out on 15 January, and one of the remaining cases was struck out, again by District Judge Silverman, on 22 July, on the basis that the claimant had assigned any cause of action to a company called GC Financial (London) Limited and so could have no personal interest in the case. The last of the five cases has subsequently, as I understand it, not been pursued by “Quinton Leslie Childs”.
4. On 2 August 2010 a bankruptcy order was made in the High Court against “Quinton Leslie Childs”.
5. On 24 August 2010 His Honour Judge Mitchell, sitting in the Central London County Court, made a general civil restraint order against “Quinton Leslie Childs” for a 2-year period. The order referred to seven claims brought by “Quinton Leslie Childs” against a variety of parties which had been struck out as totally without merit, including two that were repetitions of cases that had already been struck out.
6. Notwithstanding the civil restraint order, there were further court applications. On 2 September 2010, “Q L Gayle Childs” presented a bankruptcy petition against Mrs Timmis in the High Court; that was dismissed on 20 October. On 30 November, another bankruptcy petition was presented against Mrs Timmis; that was dismissed on 18 January 2011. On the following day, the bankruptcy petition against Mrs Timmis was presented by GC Financial (London) Limited, whose directors are said to have included a company called Gayle Childs Holdings Limited, Leslie Nathan Alphonso Childs and Leslie Gayle-Childs. The petitioner’s solicitor was named in the petition as “Kenroy Brown”, and a “Kenroy Brown” is also recorded as having been GC Financial (London) Limited’s secretary. This petition was dismissed on 26 January 2012. On 1 March 2012, “Q L Gayle Childs” presented another bankruptcy petition against Mrs Timmis, with “Q Childs” named as the solicitor; that petition was dismissed as “wholly without merit” on 20 June.
7. A statutory demand was also served on Mrs Kenrick, on the basis that she was in possession of a vehicle purchased with property belonging to “Quinton Leslie Childs”. District Judge Marston set aside the demand on 18 October 2010, but by then “Quinton Leslie Childs” had issued a claim form against Mrs Kenrick. The particulars of claim alleged that money derived from sums paid to Heritage’s accounts at Lloyds TSB had been used for Mrs Kenrick’s benefit. A further claim followed on 12 November. On this occasion, the particulars of claim referred to the payment of £100,000 made by “Quinton Leslie Childs” and Sara Robinson, who was described as the claimant’s “business partner”, on 3 April 2008 to account number 03576979 in the name of Heritage. However, on 25 and 26 January 2011 Judge Mitchell struck both claims out as in breach of the civil restraint order. “Quinton Leslie Childs” sought to re-open the judge’s decision, but his application was dismissed on 3 June 2011, as was another application “Quinton Leslie Childs” had made. Each application was described as totally without merit.
8. Other claims of relevance have also been brought in the High Court. Aside from the two claims that are before me, I am aware of six sets of proceedings that have connections with the present claimant, or, if different, the claimant in the proceedings to which I have just been making reference. In two cases, the claimant was named as “Leslie Gayle Childs”. The earlier of these claims, issued on 14 April 2011, alleged that Ashton Global Investments Limited owed some £138 million and that the debt had been assigned to “Gayle Childs & Company” by Heritage Commodities AG. On 21 July 2011 Master Teverson struck the claim out as totally without merit. The second claim brought by “Leslie Gayle Childs” was issued on 6 June 2012 against HM Revenue & Customs and related to the execution of a search warrant on 31 May 2012. The claim was discontinued in July 2012.
9. The other claims are brought by “Kenroy Brown” or “Ken Brown”. On 17 May 2011, “Ken Brown” issued proceedings against Antey Group Co Limited for some £22 million. A week later, “Kenroy Brown” issued a claim for more than £262 million against the Libyan Foreign Investments Company and Libyan Investment Authority. “Ken Brown” issued a similar claim for about £1.2 billion on 18 July. Both claims were purportedly admitted on the defendants’ behalf by “Paine Crow and Partners” as their solicitors, and judgment was entered in the first set of proceedings. However, Allen & Overy subsequently came onto the record as the defendants’ solicitors, and on 27 September 2012 they obtained an order for the claims to be struck out. As was explained in a witness statement from a partner in Allen & Overy, Mr Jonathan Hitchin, the defendants’ position was that that the claims represented frauds perpetrated by Mr Leslie Gayle-Childs. [ … ]
10. “Paine Crow and Partners” also feature in the sixth claim. On 22 July 2011, “Kenroy Brown” issued proceedings against Capitana Seas Limited for in excess of £20 million. “Paine Crow and Partners” admitted liability on the defendants’ behalf.
[ … ]
13. I have been supplied by Chief Master Winegarten with a copy of a page from the passport for a Mr Leslie Alphonso Gayle Childs. The Chief Master informs me that the individual in question appeared before him on 5 October 2011 calling himself “Kenroy Brown” and again on 1 November 2012 as “Leslie Gayle-Childs”.
14. The claimant in the proceedings that are before me has put in witness statements in each of the two sets of proceedings. In the course of those witness statements, he has denied that he has ever been made bankrupt. It is apparent, moreover, from those statements that the claimant would have it that there are other members of his family with similar names to his. He has referred to a half brother called “Quinton Leslie Childs” and a son called “Leslie Nathan Alfonso Childs”.
[ … ]
22. In all the circumstances, the materials before me suffice, as it seems to me, to establish that the present claimant is the person who has brought a variety of claims in respect of the £100,000 in the past, and also that he is the person who was made bankrupt in August 2010. [ … ]”
66. Subsequently, in Gayle-Childs v HM Treasury [2015] EWHC 2747 (Ch), the same judge, Newey J, had to consider six further claims brought by Mr Gayle-Childs, against Ashton Global Investments Limited, the City of London Corporation, the European Union, HM Treasury, Mr Mohammed Hussein, the Libyan Investment Authority, Mr Harun Miah and Mr Antony Yallop. The judge referred to his earlier decision in 2013, when he had made a 2-year GCRO against Mr Gayle-Childs, and to an earlier GCRO made against him by HHJ Mitchell in the Central London County Court in 2010. He went on:
“3. Later in 2013, Mr Gayle-Childs was convicted of offences of dishonesty and sentenced to 12 years’ imprisonment. He remains in prison. I gather that he has recently been moved from Lowdham Grange Prison to Bullingdon Prison.
4. The CRO that I made in January 2013 expired in January of this year. Since then, Mr Gayle-Childs has issued a variety of new claims in the County Court. On 16 April, I gave directions for five of these claims to be transferred to the High Court and for there to be a hearing to consider whether the claims should be struck out and a further CRO made against Mr Gayle-Childs. A sixth claim, that against the European Union, was transferred to the High Court by Deputy District Judge Pickup on 4 June, and on 15 June I ordered that it should be listed for hearing with the other five claims to consider whether it, too, should be struck out and, again, whether a CRO should be made against Mr Gayle-Childs.”
“20. I turn now to the claim that Mr Gayle-Childs has brought against Ashton Global Investments Limited (which I shall call “Ashton”). The particulars of claim in these proceedings allege that Ashton defaulted on a loan from the Ramis Fund, a Cayman Islands subsidiary of Churwitz Stanford AG Holdings Limited. The Ramis Fund is said to have assigned all its rights to Mr Gayle-Childs. On this basis, he claims to be owed £200 million plus interest.
21. Mr Gayle-Childs’ claim was purportedly admitted in its entirety by “Paine Crow and Partners” on Ashton’s behalf on 31 March 2015. Relying on that document, Mr Gayle-Childs applied on 8 April for judgment to be entered in his favour. At the end of May, Mr Gayle-Childs issued an application notice by which he pressed for judgment to be entered. After I had directed him to file any evidence on which he wished to rely to confirm that Paine Crow and Partners acted for Ashton and had admitted the claim on its behalf, Mr Gayle-Childs put in a witness statement dated 25 June in which he explained that Paine Crow and Partners are “financial intermediary brokers based in the Cayman Islands”. He went on to say that Paine Crow and Partners had been granted a power of attorney by a company called Dalia Advisory Limited, which had itself in January 2010 been granted authority to act by “the then director and vice chairman of the Libyan Investment Authority Mustafa Zarti”.
22. On 8 July 2015, Berwin Leighton Paisner wrote to the Court explaining that they acted for Ashton, which, they said, had known nothing about the proceedings until it received a letter dated 29 April from the Court. The letter further explained that Berwin Leighton Paisner had acted for Ashton in earlier proceedings brought by Mr Gayle-Childs which had been struck out by Master Teverson on 21 July 2011.
23. I mentioned those earlier proceedings in paragraph 8 of the judgment I gave in January 2013. I also referred in that judgment to Paine Crow and Partners. As I noted in paragraphs 9 and 10 of the judgment, several claims had purportedly been admitted by Paine Crow and Partners. In two of the claims, Allen & Overy subsequently came onto the record as the solicitors for the defendants and obtained an order for the claims to be struck out. A partner in Allen & Overy explained in a witness statement that his clients, who were the Libyan Foreign Investments Company and Libyan Investment Authority, maintained that the claims against them represented frauds perpetrated by Mr Gayle-Childs.
24. Mr Andrew Rose of Berwin Leighton Paisner appears on behalf of Ashton today. He has told me that Ashton’s position is that it has never authorised Paine Crow and Partners to act for it and has no knowledge of Churwitz Stanford or the Ramis Fund.”
“26. Paine Crow and Partners feature again in much the largest of the claims before me, that against the Libyan Investment Authority. In these proceedings, Mr Gayle-Childs claims more than £3 billion. That sum is said to be due on the basis that the Libyan Investment Authority acted as guarantor in relation to a promissory note entered into by the State of Libya in 2011. Mr Gayle-Childs claims as assignee: he says that the right to pursue the claim was assigned to him by DEZ Holdings Limited.
27. Here, as with Ashton, the claim was purportedly admitted by Paine Crow and Partners. On the strength of that, Mr Gayle-Childs seeks judgment.
28. On 12 June 2015, I directed Mr Gayle-Childs to file any evidence on which he wished to rely to confirm that Paine Crow and Partners act for the Libyan Investment Authority and had admitted the claim on its behalf. A recital to the order noted that no firm of that name was to be found in the Law Society’s online database and that an entity called Paine Crow and Partners LLP was struck off the register in April 2014. Mr Gayle-Childs has since filed a witness statement in which he makes the same points about Paine Crow and Partners as he made in the Ashton proceedings.
29. I continue to have grave concerns about whether the Libyan Investment Authority has authorised anyone to admit Mr Gayle-Childs’ claim on its behalf. My misgivings are the greater because, as I have mentioned, in 2012 Allen & Overy obtained an order for the striking out of proceedings against the Libyan Investment Authority that had purportedly been admitted on its behalf by Paine Crow and Partners. Moreover, Mr Gayle-Child’s prison sentence appears to be attributable, at least in part, to an attempt to defraud the Libyan Investment Authority. In the circumstances, I shall adjourn Mr Gayle-Childs’ application for judgment to a date to be fixed and give directions for the Court to send copies of the documents filed in the proceedings, and the orders made in them, to the Libyan Investment Authority care of each of Enyo Law, Hogan Lovells International and Allen and Overy. I am aware that each of these firms has acted for the Authority in other Court proceedings.”
69. A variation on the same theme was the claim against Mr Yallop, The judge said:
“30. The Ashton claim is not the only one to involve Churwitz Stanford AG Holdings Limited. Another claim to do so has as its defendant a Mr Antony Yallop. Mr Yallop is alleged to have defaulted on a £300,000 loan made pursuant to an agreement dated 28 January 2012. Mr Gayle-Childs asserts his claim as assignee of Churwitz Stanford. Somewhat mysteriously, the particulars of claim state:
‘The defendant’s drawdown on the loan was transferred by agreement to CLZ and Associates Debt Management Services to settle an outstanding debt.’
31. On the face of it, Mr Yallop has admitted Mr Gayle-Childs’ claim. An admission form dated 27 March 2015 that seemingly bears Mr Yallop’s signature states that the full amount claimed is admitted and can be paid on that date. On the strength of this document, Mr Gayle-Childs has pressed for judgment to be entered in his favour. In fact, he first requested judgment on 30 March, the next working day after 27 March.
32. He may prove to be entitled to it. Given, however, what I know of other claims brought by Mr Gayle-Childs, I am wary of taking the admission at face value. The fact that Mr Yallop appears to be a fellow prisoner increases my unease, as does the fact that (to this untrained eye) much of the manuscript on the admission form seems to be in Mr Gayle-Childs’ handwriting.”
72. In Barabutu v Timmis [2017] EWHC 1777 (Ch), decided in June 2017, Chief Master Marsh struck out a claim, brought by a convicted murderer serving his sentence in the same prison as Mr Gayle-Childs, against a Mrs Elizabeth Timmis. The claim concerned a payment said to have been made by a BVI company called KB Trust Company to a firm called Heritage, which was a business run by the defendant's husband, Mr John Mark Timmis. The claimant Mr Barabutu was said to be the assignee of the claim by KB Trust Company against Heritage. (As I mentioned above, I have previously dealt with cases involving Mr Smith and the names Timmis and Heritage.)
73. The Chief Master said this:
“5. In unrelated proceedings brought in the name of Mr Barabutu - that is claim number HC-2016-003010 - an application came before me on 24th January 2017. In those proceedings I gave judgment and, at para.16 of that judgment, I recorded my findings that Mr Barabutu was a nominal defendant and that the cause of action, again said to have been assigned, was, in fact, a claim brought by Mr Gayle-Childs. [ … ]
6. In yet further proceedings, in a claim called Sanderson v The State of Libya, am order has been made by me striking out the claim and, similarly, concluding that Mr Sanderson, also a serving prisoner at HMP Swaleside and a convicted murderer, was a nominal claimant in relation to a claim brought, in reality, by Mr Gayle-Childs. This claim bears the hallmarks of Mr Gayle-Childs' involvement. Mr Gayle-Childs has pursued what can properly be described as a 'campaign of litigation' against Mrs Timmis. There have been five claims previously brought by Mr Gayle-Childs against Mrs Timmis, all of which have been struck out. Three of the five cases were struck out on 15th January 2008 by District Judge Silverman in the Central London County Court, and two further claims were struck out on 22nd July 2008 by the same District Judge.
7. The claims that were struck out concerned Mrs Timmis and a complaint relating to a £100,000 payment said to have been made into a Heritage account on 3rd April 2008. That brief summary suffices to indicate in the clearest terms that the facts underlying this claim, and the facts in the previous claims brought against Mrs Timmis, show a remarkable degree of similarity. It might be that the claim that is before me today is expressed in different terms, but undoubtedly it relates to the same underlying facts.”
Kinloss Property Ltd v The Registrar of Companies, G01BS153
81. The relief sought by the notice is:
“That the Court orders that the Defendant disclose the documents which are or have been in his control pursuant to CPR 31.16. Because the documents electronic or otherwise holds evidence that furthers the Applicant’s claim in the interests of the administration of justice and/or in the consequence of CPR 1.1 the overriding objective.”
This again is identical to the relief sought in the notice in the Marston Holdings case.
82. The witness statement of Mr Cullinane, so far as relevant, says this of the relief sought:
“3. I make this witness statement in support of my application for an order for this Court for pre-action disclosure of the electronic records, documents or otherwise held on specific computer hard drives and portable data storage devices controlled by the Defendant which would provide information and clarity in order to narrow the legal issues pursuant to this cause of action and in the interests of the administration of justice pursuant to CPR 31.16.
[ … ]
16. In the consequence of CPR Part 31, I submit this application for disclosure of documents electronic or otherwise relied upon by the Defendants that resulted in the failure by the Defendant to accurately update the Companies House register to allow the public register to reflect the identity of the owners and directors of the Claimant.
17. The disclosure sought of material facts relied on by the Defendants who are bound by the law and CPR 19.8A(2)(b) as ordered in the relevant proceedings that has resulted the Claimant and the public being prevented from accessing accurate records the Defendants are required by law to keep.
18. The Defendants appear to have shown little regard to the ‘real world’ position the beneficial owners, shareholders and directors have resolved to record. I assert that in the absence of a genuine oversight or error by the Defendants staff I now seek clarification as to the factual position the Defendant relies that supersedes the order of District Judge O’Neill and whose actions are corrosive of the civil justice system endorsed by parliament.”
“The Registrar and Companies House do forthwith add Kinloss Property Ltd (BVI) as a director of Kinloss Property Ltd (UK) to the Companies House register within 7 days of service of this order.”
In effect, as will be seen below, this is the substantive relief contemplated in the future substantive proceedings.
87. The UK company complained, relying on the Tomlin order. But the registrar declined to alter her decision. One might have thought that the correct remedy (if a wrong were done) would be to apply for judicial review of the Registrar’s decision, and disclosure is rarely ordered in judicial review claims. But in any event, in my judgment it is clear law that the agreement scheduled to a Tomlin order is not part of the court’s order (which is to stay the proceedings, and usually to give leave to enforce the terms of the parties’ agreement without the need to start a fresh claim), but is simply a private contract between the parties: see eg Cartwright v Venduct Engineering Ltd [2018] 1 WLR 6137, [41]-[44], CA. There is accordingly no order of the court binding the Registrar of Companies to do anything, including requiring her to register the BVI company as a director of the UK company, and she cannot therefore be in breach of any such order.
89. The claimant further alleges that the Registrar is in breach of a common law duty to register the appointment of the BVI company as a director of the UK company. Whilst the decision in Sebry v Companies House [2015] EWHC 115 (QB), [111], established that a duty was owed by the Registrar to some third parties, this duty is limited to cases where the status of a company, relevant to its solvency, is in issue, the change to the register is recorded “carelessly” by the Registrar, and it is foreseeable that serious harm would result if the Registrar recorded a change against the wrong company. None of those criteria is met in this case.
Civil restraint orders
Envoi