MR. JUSTICE PICKEN:
Introduction
- In this matter, I am handing down judgment today in relation to certain arguments which I heard on 10 June and then also on 17 June - that is, the Friday before last and last Friday.
- The judgment is concerned with the enforceability of a freezing order made in Cyprus - that is, the CFO - initially in May 2013 on an ex parte basis and then after a without notice hearing in May 2014. The details are set out in my judgment and I do not repeat them here, even though that judgment will only actually be handed down after this ruling has been given because of concerns which underpin the present application by the claimant. Those concerns are essentially that, once the judgment has been handed down, the parties having had sight of the judgment in draft of course, immediate steps will be taken to dissipate assets in this jurisdiction, my having decided in the judgment that the "judgment" for the purposes of the Judgments Regulation - that is, the CFO in the present case - in respect of which the Registration Order was made by Master Leslie in early February 2015 is not presently fully effective and enforceable. I have decided also that "measures of enforcement" for the purposes of Article 47.3 of the Judgments Regulation include service of the CFO and the Registration Order made in respect of it on third parties in this jurisdiction.
- The application, in these circumstances, is for a domestic freezing order pursuant essentially to Articles 47.2 and 47.3 of the Judgments Regulation. I do not set out the terms of these provisions here. They are set out in the judgment which I shall hand down after giving this ruling.
- The application is made in circumstances where, as I have pointed out in my judgment and as Mr. Malek highlights in his submissions before me on 10 June, the claimant has to date made no application for "protective measures" notwithstanding that Article 47.3 expressly permits such an application to be made and notwithstanding also that, back in February 2015, Master Leslie specifically raised with Mr. Samek whether the claimant ought to be applying pursuant to Article 38 of the Judgments Regulation for a domestic freezing order rather than, or perhaps in addition to, the Registration Order.
- The application is described as being required in the light of my judgment, in particular because of a concern that, were UBP to learn of what has been decided and indeed other parties, instructions will be given to UBP to make payments out of the accounts in London held at UBP by the defendants or certain of them, and that those instructions will likely be followed, so meaning that money is paid out.
Jurisdiction
- Mr. Samek submits that I have no discretion in the matter and that the claimant is entitled to the relief sought as of right, as he puts it. He makes this submission based on certain passages in the Capelloni case. Again, I have given the reference in my main judgment. He also relies on the Court of Appeal decision in Banco Nacionale and the reference to that case is also set out in my main judgment. He suggests that refusal of relief would be incompatible with the Judgments Regulation and that I should therefore grant the relief without more ado. Mr. Samek took me to the Capelloni case at some length. It is not feasible in this ex tempore judgment to refer to everything to which I was taken. I propose instead to concentrate on the most important passages in the judgment of the CJEU in that case. These start at paragraph 16 of the judgment, where the CJEU addresses the question of whether the grant of protective measures under Articles 47.2 and 47.3 - actually, at that time, the predecessors to those provisions, as set out in Article 39 of the 1968 Convention - is subject to the procedural law of the domestic court concerned. The court said this at paragraph 16:
"However, the Convention confines itself to regulating the procedure for obtaining authorisation for enforcement but contains no provisions concerning enforcement itself which remain subject to the municipal law of the court dealing with the matter …".
- The court then continued at paragraph 17 as follows:
"In this context, Article 39 governs the rights of the party who has sought and obtained authorisation for enforcement during the period for appeal laid down in Article 36 and until judgment is given on the appeal".
Mr. Samek highlights in this latter context the reference to "the rights of the party" and also the reference by the court to Article 39 of the 1968 Convention governing those rights. He suggests that the same approach should be adopted in relation to Article 47 of the Judgments Regulation and the same focus therefore ought to be on "the rights". He suggests that this shows that the applicant is entitled to protective measures under Article 47.2, and indeed Article 47.3, so that there is no discretion on the part of the domestic court or, as described in paragraph 16, "the court dealing with the matter", to refuse relief if the situation is that the protective measures concerned must be obtained through the relevant court.
- At paragraph 18, the CJEU went on as follows:
"As the first paragraph makes clear, during this period, the party in question cannot proceed with measures of enforcement strictly so-called but must, if he considers it necessary, confine himself to taking protective measures against the property of the party against whom enforcement is sought. As the second paragraph states, the power to take such protective measures arises from the decision authorising enforcement".
Mr. Samek emphasises in this context the reference to "if he considers it necessary", submitting that this again this shows that the applicant has an entitlement, as Mr. Samek would characterise it, to take protective measures, not merely an ability or power or right to apply to the domestic court for an order to be made.
- Then, at paragraphs 19 and 20, the CJEU continued as follows:
"19. The manifest purpose of this provision is to enable the party who has obtained authorisation for enforcement, but who cannot yet proceed to take enforcement measures, to prevent the party against whom enforcement is sent from disposing of his property in the meantime so as to render future enforcement unsuccessful or even impossible.
20. However, as in relation to enforcement proper, also with regard to the protective measures referred to in Article 39, the Convention confines itself to stating the principle that the party seeking enforcement may proceed with such measures during the period indicated in that Article. On the other hand, the Convention leaves the task of settling any matter which is not the subject of specific provisions in the Convention to the procedural law of the court in question".
Again, Mr. Samek submits that these passages underline the entitlement, as he puts it, to obtain protective measures (in the current context, a freezing order), rather than a power or right merely to ask the court to make such an order.
- Mr. Samek then makes reference also to paragraphs 24 and 25 of the judgment as follows:
"24. As the Commission has rightly stated, Article 39 makes it unnecessary for the party who has obtained authorisation for enforcement to obtain a specific, separate court authorisation for the purpose of proceedings with protective measures during the period indicated in that Article, even if such authorisation would normally be required by the internal procedural rules of the court in question.
25. This conclusion follows from the wording of the second paragraph of Article 39 itself which states that the decision authorising enforcement shall carry with it the power to proceed with protective measures. This phrase shows that the right to take such measures has its origin in the decision authorising enforcement and therefore a second decision which, in any case, could not question the existence of the right would not be justified".
Mr. Samek relies also on the following paragraph, paragraph 26, to the same effect. He stresses again that this is the language of entitlement and highlights in particular how, in paragraph 25 in the first sentence, there is a reference to "the power" as described in Article 39 which, in the following sentence, is characterised as being "the right", so demonstrating, he suggests, that essentially there is no distinction between a power, on the one hand, and a right, on the other. He further submits that the passages show that the domestic court has no right to review the obtaining of any order by way of protective measure.
- Other passages are relied upon by Mr. Samek, but these seem to me to be the key passages. He submits that, in these various passages, the CJEU was not agreeing with Advocate General Slynn when he said what he had to say in the opinion which precedes the report of the judgment of the court. Specifically at page 392, when dealing with the first part of the first question which I have already described, Advocate General Slynn said as follows:
"Subject to these matters, the procedure on an application for protective measures and the factors to be taken into account - for example, the relevance of urgency and the risk of the judgment debtor's assets being removed from the jurisdiction - are for the national court to decide under national law and practice".
- Similarly, as regards the second aspect of the first question which I have not yet set out but which will be apparent from what I am about to read, Advocate General Slynn said as follows at the top of page 393:
"I agree that the wording of the Convention does not oust the rules of municipal law on this matter, either expressly or by necessary implication. I therefore accept the view put forward by the Commission and the United Kingdom. However, for the reasons that I have already given, during the confirmatory procedure, the court may not require the judgment creditor to make out a prima facie case on the substance; nor may it have regard to matters which might preclude a judgment of another contracting state being enforced under the Convention".
- Similarly, as regards what was described as the second question, the Advocate General said as follows at the foot of page 393, going over to the top of page 394:
"In my opinion however, the correct reading of the Article is that during the period provided for appealing against an order made under Article 31 no measure of enforcement may be taken, other than such protective measures against the property of the party against whom enforcement is sought as are available under national law. A plaintiff who has obtained an order for enforcement may, under the Convention, proceed to those measures by whatever route national law provides. If national rules enable him, for example, to seize property without further order, he may do so. If national rules require a further order of the court, such an order must be obtained either from the court authorising enforcement or from some other competent court.
In some Member States, such protective measures may be made in precise terms in respect of specific property and subject to well established conditions. They may vary according to the circumstances. Some property may not be available for seizure as a matter of national law. I cannot see that the Convention has abolished the power of the national courts to go into these questions by enabling protective measures to be automatically taken, merely because an enforcement order has been made. … I therefore take the view that whether a further application is needed for protective measures is a matter of national law".
- Lastly, dealing with what was described as the third question, Advocate General Slynn said this later on at page 394:
"Once again, the United Kingdom maintains that the answer is to be found exclusively in national law. The Commission, on the other hand, maintains that the rights of the judgment debtor to carry out the protective measures subsist throughout the period specified in the opening words of Article 39. I do not accept the Commission's view. The primary purpose of the opening words of Article 39 is to define the period during which no measures of enforcement may be taken. Article 39 then goes on to provide that, during that period, protective measures may be taken. It does not follow however that the judgment creditor must be entitled to take such measures throughout the period concerned".
- I observe that it is not apparent to me that the CJEU and the Advocate General were saying different things, but this is a matter to which I shall return.
- Mr. Samek also places reliance on the Banco Nacionale case and the judgment of Tuckey LJ, in particular starting at paragraph 18, where this is stated:
"It is common ground that Articles 47.2 and/or 3 gave BNC the right to take protective measures against ETC's property in this country after registration pending determination of the appeal. A domestic freezing order was made pursuant to these provisions".
He suggests that this, with its reference to "the right to take protective measures", again supports his submission that a party in the claimant's position is entitled as of right to obtain a freezing order from the domestic court. Mr. Samek submits that the same point can be discerned from paragraph 25 of Tuckey LJ's judgment where - and again this is a provision which I have set out in my main judgment - Tuckey LJ sought to summarise the effect of the constituent parts of Article 47.1, 47.2 and 47.3.
- Mr. Samek then relies upon paragraphs 44 and 45 of the judgment. These are again passages which I have set out in my main judgment, but it is worth me repeating them here as follows:
"44. As the Capelloni case, para.20 makes clear, the Convention and now the Regulation confine themselves to laying down the principle that the party who has a declaration of enforceability/registered a judgment may proceed with protective measures. Matters not covered by specific provisions are left to the procedural law of the court hearing the proceedings. Neither Article 47 nor any of the other provisions of the Regulations says anything about the character or scope of the protective measure required or indeed about the need to have any such measures at all. It seems to us therefore that an applicant for such measures must take them as he finds them in the jurisdiction where he seeks to enforce his judgment so, if a particular measure has a certain feature, either the applicant accepts it or chooses not to avail himself of it. In this country, a freezing order is available as a protective measure, but it has certain features which include the requirement for an undertaking to protect third parties. It does not seem to us that an applicant for this measure can say that he will not give the undertaking and is entitled to the measure without it. If this was the case, such an applicant would be in a better position than a judgment creditor seeking to enforce an English judgment here.
45. In the Capelloni case, it seems that the judgment creditor was able to arrange for protective sequestration of the judgment debtor's property without a court order. There is no equivalent right here. The applicant must apply to the court for a freezing order but if for example, as a condition of granting such relief, the court required him to prove the claim which gave rise to the judgment, that would obviously not be compatible with Article 47. Similarly, as in the Capelloni case, the court could not impose a time limit on the freezing order which was different from that laid down in article 47.3, but there is nothing incompatible with the Regulation in saying to an applicant who seeks a particular measure in a particular jurisdiction that he must take the measure as he finds it or not at all."
Mr. Samek submits that these passages further demonstrate that the right is not confined to asking the domestic court to make an order but is an absolute entitlement, subject only to the domestic court having the jurisdiction to grant the particular protective measure sought by the applicant - in the current case, a freezing order - and also subject to the domestic court being entitled to insist on the protective measure - in this case, a freezing order - complying with its procedures, as demonstrated in the Banco Nacionale case by the requirement that a particular undertaking should be given in return for the obtaining of the order.
- Having considered these submissions and the authorities to which I have been taken, I am driven to the conclusion that Mr. Samek's submissions are not correct. In short, I do not agree that the domestic court - in this case, the English High Court - has no discretion as to whether or not to grant a freezing order which is sort by way of protective measures, pursuant to Articles 47.2 and 47.3 of the Judgments Regulation. I am clear, by reference to paragraph 18 of the Banco Nacionale case, that Tuckey LJ's reference there to the "right" needs to be read alongside what he went on to say in paragraph 44 in the passage which I have just read out. I have in mind, in particular, the fact that Tuckey LJ was clearly making the point in paragraph 44 that an applicant - in this case, the claimant - must take the domestic court as it finds it or, more accurately, as it finds the protective measures which are available in the domestic court, including the possibility, therefore, that the domestic court has no available protective measures of the sort desired to be obtained by the applicant. In view of this, it is difficult to see that it can be right that a Member State would be in contravention of the Judgments Regulation by its courts applying those measures in accordance with their own conventional principles, as applicable to the grant of the relevant relief. The last sentence of paragraph 44 seems to me also to be especially significant in that Tuckey LJ is there saying, as I see it, that the position cannot be that an applicant which has a foreign judgment is in a better position than an applicant with an English judgment. Tuckey LJ made this point, I acknowledge, by reference to the particular issue which was before the Court of Appeal in that case, namely whether an undertaking should be included in the freezing order obtained, but the point seems to me to have more general application. I see no reason, in principle, why a party in the claimant's position with a foreign judgment which is registered as an English order should be in a better position than an applicant which has an English judgment simpliciter.
- I was referred also, in the context of this argument, to certain passages in two academic texts, namely Civil Jurisdiction in Judgments, Briggs, 6th Edition, at paragraph 7.27, and Dicey & Morris at pages 779 to 780, specifically paragraph 14-240. Interestingly, the argument which is advanced before me today by Mr. Samek is not one which is advocated in either of those academic texts. On the contrary, albeit only in a footnote it is fair to point out, in Briggs, the following is stated at footnote 274, namely:
"In 119/84 Capelloni v Peltmans [1985] ECR 3147, it was suggested that there was a right to obtain such measures, but the truth probably is that there is a right to apply and the court has a discretion, which it may exercise in the applicant's favour, to grant the relief applied for".
This suggests that the view which I have formed, based on the Capelloni case itself and on the Banco Nacionale case itself, is the right one.
- As a matter of principle, I struggle to see that it can be right that a judge in the High Court in this jurisdiction - in the present case, me - should be asked to make a freezing order without applying conventional principles to the grant of such relief in this jurisdiction. I acknowledge certainly that, as in any post-judgment case involving an English judgment or a foreign judgment, a freezing order will likely more readily be given when compared with an application for a freezing order at a pre-judgment stage, but that is not the same thing as saying that the judge has no discretion in the matter at all. It seems to me, by reference to the passage in Dicey & Morris at paragraph 14-240, that this essentially is the point that is there being made. The passage concerned reads as follows:
"Before the expiry of the time for appealing against the order for registration has expired or before such appeal has been determined, the execution of the judgment is not possible, although protective measures may be taken. The policy is that measures should be available to prevent the judgment debtor from being able to frustrate the later enforcement and there is therefore a strong presumption in favour of their being granted".
The reference to there being a strong presumption in favour of the grant of the protective measures seems to me, in all probability, to be a reflection of the point I have just made, namely that, in the Article 47 context, the protective measures sought relate to a judgment obtained in a foreign jurisdiction and not merely therefore to allegations made in advance of the obtaining of a judgment.
- Mr. Samek's argument requires, as he confirmed to me when I put the point to him during the course of his oral submissions, that it is sufficient for an applicant in the claimant's position to come before the English High Court and simply to say that it considers that protective measures are appropriate in the form of a freezing order in the present case and say nothing more because the court is obliged to give it what it seeks. I cannot accept that this is what the Capelloni case requires should happen. I do not consider that that is what is stated in the passages to which I have been taken, whether in the passages of the CJEU's judgment itself or in the passages of the opinion of Advocate General Slynn. Nor do I consider that, in any event, there is the suggested disagreement between the CJEU and Advocate General Slynn in the Capalloni case. It would be odd, if there were a disagreement that, nowhere in the judgment of the CJEU is that disagreement referred to. Nor, in my judgment, is what Mr. Samek urges upon me what the Banco Nacionale case requires. Nor, in my judgment, can it be right in principle to approach matters on the basis that freezing order relief, a serious form of relief, should emanate from a High Court Judge in this jurisdiction without that judge himself or herself considering the appropriateness of the grant of that relief. In my view therefore, whether the relief sought ought to be granted is a matter which entails the court applying conventional principles applicable to the grant of freezing order relief.
Should a freezing order be granted?
- Mr. Malek submitted in his skeleton argument that he was in no proper position to deal with the application at this hearing, notice having only been given of the application last Thursday at about lunch time and the day, therefore, before I was due to hand down judgment in the matter. Mr. Malek highlighted in particular how no such application has been made at any previous time and specifically how no application has been made at any time after the CFO was obtained in Cyprus in May 2013, initially on an ex parte basis at that stage, and thereafter a year later, in May 2014, after a without notice hearing. His position, in short, was that the delay in this case is very considerable indeed and that, on that basis, the relief sought should be refused.
- Mr. Malek's position, when the matter was first raised and when it came before me last Friday, was to suggest that I should deal with the application as though it were an ex parte application, insufficient notice having been given of it. Today, which is Wednesday 22 June, the relevant three clear days' notice having now been given, it seems to me that it is appropriate, however, that I deal with the matter on the basis that it is a 'with notice' hearing, as opposed to a 'without notice' hearing.
- As I have indicated, Mr. Malek made the point in his skeleton argument that he would wish to serve evidence in response to the application. In the event, however, Mr. Malek explained to me today that, having had the opportunity in his skeleton argument of making the submissions which he would wish to make, he no longer required time within which to serve evidence. He has also put before me - and I will come onto refer to it - a witness statement made in the context of the appeal against the registration order, so to that extent there is evidence from the defendants before me which I can consider on this application. In the circumstances, although I was at one stage inclined to think that the correct course would have been to have put this matter off so that it could be dealt with at a hearing when Mr. Malek's side had had the opportunity to serve evidence and, if necessary, to grant interim relief in the meantime, it seems to me that it is appropriate not to do that, but instead to grapple with the application on its merits today.
- On that basis, as I have suggested already, three clear days' notice having been given, although only just, I am satisfied that Mr. Samek is right when he invites me to treat today's application as being a 'with notice' application and not, therefore, an ex parte on notice application - in other words, to treat today as though it is a proper inter partes hearing, my having of course heard not only from Mr. Samek but also from Mr. Malek.
- I come on now to consider whether the freezing order which is sought ought to be granted, observing right away that the form of order which is now before me has undergone a certain amount of modification since last Friday when the claimant, through Mr. Samek, first raised the matter with me. In particular, the order no longer seeks ancillary orders requiring the individual defendants to inform the claimant's English solicitors, DLA Piper LLP, within 72 hours of all of their assets in England and Wales exceeding £5,000 and to swear and serve on DLA Piper LLP affidavits setting out that information within seven days.
- As I have indicated, Mr. Malek's position is that the freezing order which is now sought should be refused, not on the basis that no good arguable case exists, because he accepts that that had been shown, given that the claimant has obtained the CFO in Cyprus, and so that this was not an argument which was really available to him, but on the basis that the application is being made too late and on the basis also that the evidence of dissipation is deficient and not sufficiently solid as to warrant the grant of the relief sought.
- I deal, therefore, firstly with delay. Mr. Malek submits that the delays in this case, which he describes as being unexplained, are a sufficient basis to refuse the application. In particular, he submits that the delays, as he puts it, call into question the genuineness of the claimant's belief that there is a real risk of dissipation by these defendants on the facts of this case. He goes on to submit that the delays also call into question the claimant's true motivation in making its applications for what he describes as the draconian relief of a freezing order and, in this context, relying on the first witness statement of Dr. Koretsenis, filed in support of the appeal against the Registration Order, an appeal which I am due to hear at the end of next month, he characterises the claimant's conduct as being consistent with a claimant seeking to use applications for freezing relief, both worldwide and local, to oppress a defendant. Lastly, he submits that the court should be wary of excusing or condoning in any way the inordinate and unexplained delay on the part of the claimant in this case. He submits that the claimant could have sought worldwide and local freezing order relief at any time since at least November 2012, when the claimant issued the Cyprus proceedings which have led to the making of the CFO. He suggests that, if this were what might be described as a normal case, then the claimant would have been expected to have sought urgent freezing relief shortly before or when issuing those proceedings in Cyprus.
- Mr. Malek submits that the only explanation given for delay in this case is what was said by Mr. Flack, the claimant's then solicitor and so not from DLA Piper LLP, in paragraph 35 of the statement which he made in support of the application to Master Leslie seeking the Registration Order. In that paragraph, Mr. Flack referred to the delay which had occurred between 23 May 2014, when the CFO was renewed after the 'with notice' hearing, and February 2015, when the application for the Registration Order was made. Mr. Flack referred to the reason for the delay being:
"… primarily because of the bureaucratic internal approval processes of the Resolution Authority of LAIKI – i.e., the Central Bank of Cyprus - without whose approval LAIKI cannot take any foreign, legal advice and/or legal measures outside of Cyprus."
Mr. Malek makes the point that this explanation, such as it is, explains only part of the delay and, in any event, he suggests, does not really amount to any explanation at all. No explanation, Mr. Malek points out, has been given for other periods of delay, namely as follows: first, concerning the reason why an application for freezing order relief was only made in Cyprus on an interim basis in May 2013, the Cyprus proceedings having been commenced the previous December; secondly, what Mr. Malek describes as the great delay of a year between the interim CFO and the final CFO made in May 2014; thirdly, the delay between the final CFO being made in May 2014 and the seeking of the Registration Order in February 2015 (in relation to that matter and that matter alone, Mr. Flack had something to say in paragraph 35 of his witness statement, but not a lot) ; and fourthly, the delay in serving the Registration Order made by Master Leslie in February 2015 on the defendants in Greece, that service only taking place in the third week of February this year and so, therefore, a whole year after the order was first made. Mr. Malek also refers to the statement of Dr. Koretsenis, which I have mentioned already and which was prepared in the context of the substantive appeal against the making of the Registration Order.
- Mr. Malek's submission is that, in the circumstances, I should conclude that the delay in this case is so considerable and so unexplained that relief should be refused as a matter of discretion. In this context, Mr. Malek refers to the case of Cherney v Neuman [2009] EWHC 1743 (Ch), a decision of His Honour Judge Wacksman QC, sitting as a judge of the High Court. Particular reference is made by Mr. Malek to paragraph 77 of the judgment, where he sets out certain general points which fall to be made concerning delay in the context of applications for freezing orders. In particular, at paragraph 5(a), the judge states as follows:
"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".
The reference to "at this stage" would appear there to be a reference to an application being made for a freezing order after proceedings have been commenced and so is apposite in the present case. In addition, I was referred to what the judge went on to say in sub-paragraph (vi) as follows:
"Even if the delay did not entail that there was no risk of dissipation or that the claimant should not now be entitled to assert it, it may still feature in the overall exercise of the court's discretion".
I should mention that Mr. Samek highlights that this paragraph continues as follows:
"Conceivably, it could have had a prejudicial effect upon the defendant, although usually any potential prejudice caused by the grant of the injunction itself is catered for by a suitable cross-undertaking in damages or modifications to the terms of the injunction".
- Mr. Malek, having referred me to this authority and the principles set out by the judge in it, goes on to submit in this connection, and by reference to the evidence which has been put before me concerning the alleged risk of dissipation, that the delay is suggestive of a lack of a genuine belief that there is in the present case a real risk of dissipation which needs to be safeguarded against. In this connection, Mr. Malek relies on certain observations made by Gibson LJ in Thane Investments v Tomlinson [2003] EWCA Civ 1272 and, in particular, at paragraph 21 where Gibson LJ said as follows:
"It is clear on the authorities that what the court must be satisfied about before making such an order is that the applicant for the order has a good arguable case, that there is a real risk that judgment would go unsatisfied by reason of the disposal by the defendant of his assets unless he is restrained by the court from disposing of them and that it would be just and convenient in all the circumstances to grant the freezing order".
Mr. Malek places particular reliance on what then follows:
"It is important that there should be solid evidence adduced to the court of the likelihood of dissipation".
- Mr. Malek argues that, in the present case, the only matters relied upon concern certain payment instructions which were given to UBP on 23 February this year, the day when the CFO and the Registration Order were served on the defendants, those being instructions given by the parties which it is suggested are, if not the defendants themselves, are parties closely related to the defendants and instructions which relate to a company called Lucca Properties Limited. Mr. Malek suggests that these instructions related to the transfer of what he described as a trivial amount, although he acknowledged when I asked that there is no evidence before me and, therefore, no evidence to which he can take me concerning the level of money involved. Mr Malek adds that anyway there was nothing at that stage to stop the defendants giving such instructions to UBP, given that the CFO was not enforceable at that stage in this jurisdiction.
- I am not persuaded by those submissions. I acknowledge that, if there were no evidence of any risk of dissipation, then the delay which has occurred in this case - and in particular the largely unexplained delay - would justify the view being taken that no risk of dissipation is actually perceived by the claimant - the applicant for the freezing order - to exist. In truth of course, without any evidence of risk of dissipation, then, even without delay, it would be inappropriate to grant freezing order relief. That, however, is not the current case since it seems to me that the evidence which I have concerning the Lucca Properties instructions is sufficiently, to use the language of Gibson LJ in the Thane case, solid evidence of a dissipation risk, given: first, the coincidence of the timing of those instructions; secondly, the fact that instructions were given by entities which appear to have links with the defendants; thirdly, UBP's response to those instructions which was to proceed on the basis that the CFO likely covered the monies concerned; and fourthly, the breadth of the CFO - this is related to the third point - which covers, as Mr. Samek reminds me: "All of the assets of defendant … whether these are registered in his name or not, whether these are held exclusively by him or jointly, where the defendant … has a legal interest in them or is a beneficiary of them" (the reason I have inserted "…" after the reference to the defendant is because I am reading there from a passage concerning the first defendant, but there are equivalent paragraphs relating to the other defendants in similar terms). It seems to me that, in these circumstances, it is not a sufficient answer for Mr. Malek to suggest that there was, as he puts it, "nothing wrong" with the instructions, and at least that this does not represent a sufficient answer for present purposes, namely in circumstances where those instructions are being relied upon as evidence of a risk of dissipation. Lastly – and this is really my fifth point - I note the role of the solicitors for the defendants, Three Crowns LLP, in taking up, as it were, the cudgels in relation to this matter - that is, in the wake of the instructions given as regards Lucca Properties. I take account of the fact that there would appear to be some common representation, so indicating the likelihood, in my view, that there is, indeed, some link between the Lucca Properties instructions and the defendants in the present case.
- More generally as regards the Lucca Properties matter, as to the suggested triviality of the amounts concerned, as Mr. Malek very fairly and candidly acknowledges and as I have already pointed out, there is no evidence before me in relation to that, and so I can really place no reliance on it.
- However, the Lucca Properties matter is not the only matter which is relied upon by the claimant in support of its contention that there is a risk of dissipation because, as Mr. Andrews in his witness statement in support of the freezing order application states at paragraph 31.3:
"Notwithstanding their obligations pursuant to the terms of the Cypriot WFO, there are for the reasons I have already explained good grounds to conclude that, one, the respondents have failed to disclose assets in breach of the terms of the Cypriot WFO and, two, the respondents or others acting on their behalf have already attempted to effect transfers of assets caught by the Cypriot WFO again in breach of its terms. Indeed, I understand Dr. Koretsenis, in paragraph 9 of his third witness statement in support of the declaration application, positively to assert that the first respondent has himself also attempted to give transfer instructions to UBP, which would again appear to be a breach of the Cypriot WFO".
I need not, in the circumstances, read directly from Dr. Koretsenis's third witness statement, and I should also record that Mr. Malek expressly did not accept the accuracy of Mr. Andrews's assertion that any such instructions represented a breach of the CFO; that is not accepted by Mr. Malek and I say no more about it. What is significant, however, is that the matter is relied upon by Mr. Andrews on behalf of the claimant and it seems to me to amount to further evidence which is sufficiently solid for present purposes as to a risk of dissipation. That is all that matters for now.
- I conclude, therefore, although not without some hesitation, that there is sufficient evidence of risk of dissipation which is before me. I ask myself then whether the delay in this case, and in particular the lack of explanation for so much of that delay, changes things. I do not consider that it does. I regard it as regrettable, to say the least, that there are in this case periods of unexplained delay. However, I feel unable to conclude that that delay should be regarded as undermining the claimant's concern about risk of dissipation, so as to cause me to conclude by reference to the Cherney case and what the judge had to say at paragraph 77.5(a), that the delay in the present case and the lack of explanation for that delay means that the claimant "does not genuinely believe that there is a real risk of dissipation which requires to be safeguarded against by an injunction". The delay between February 2015 and February 2016 is, as I have observed in my main judgment, especially curious. However, I bear in mind that it was not until this year apparently that Lucca Properties was known about, and also that the claimant has, of course, throughout apparently been concerned about a risk of dissipation, as demonstrated by the fact that, in May 2013, it sought a CFO in the Cypriot courts. That apparent concern, again when weighed in the balance, seems to me to point against a conclusion that the delay in this case is consistent with, and only consistent with, a lack of concern as to risk of dissipation.
- On balance, therefore, but only on balance, I consider that the delay in this case ought not to mean that I refuse the freezing order relief which is sought and, in that context and by reference to what is stated in paragraph 77.6 in the Cherney case, I note the fact that no particular prejudice is identified or even asserted on behalf of the defendants and so, even viewing delay more generally and, as it were, in the round, going to the overall justice of the case, it does not seem to me to be appropriate to refuse the freezing order which is being sought on that basis. On the contrary, Mr. Samek's submission that to grant the relief in a sense holds the ring seems to me to have some merit, albeit I make it clear that I do not grant the relief exclusively on that basis. It is a factor which falls into the mix, but cannot be a substitute, by itself and without more, for the need to show a risk of dissipation or a perceived risk of dissipation.
- Nor, lastly, do I consider it appropriate to refuse relief on the basis of what is stated in Dr. Koretsenis's first witness statement concerning what the defendants regard as the oppressive and wrongful conduct of the claimant. I confirm that I have been taken to certain parts of that statement which confirm that that is, indeed, Dr. Koretsenis's view. I note the allegations that are there made concerning oppressive behaviour on the part of the claimant, but I am not in a position at this juncture to gauge the strength of those points. They will be a matter, as I understand it, for the appeal, the witness statement, as I have already observed, having been made in support of that appeal. As to the fact that no response has been yet filed to that witness statement by the claimant, it seems to me that the answer to that is that, for reasons explored last week during the hearing which took place on Friday, neither side has advanced the appeal. Indeed, it is only now, in the light of certain directions I gave last Friday, that the claimant is under an obligation to put in responsive evidence to that witness statement.
Conclusion
- For those reasons, I am persuaded that the order should be granted. The terms of the order we now need to discuss, but I make it clear that the order should run only until the appeal that is due to be heard at the end of next month and logically, it seems to me, until determination of that appeal, but I will hear from both parties in relation to that now.
