Strand, London, WC2A 2LL
B e f o r e :
|LLOYDS INVESTMENT (SCANDINAVIA) LIMITED||Claimant|
Mr Ager-Hanssen in person
Hearing dates: 14th - 15th July 2003
Crown Copyright ©
Mr Justice Patten
i) The order made by the Deputy Judge was disproportionate and has stifled a genuine defence to the claim, as well as a substantial counterclaim. It was wrong in principle;
ii) He has no free funds with which to make up the balance of the payment due under Mr Berry's order. He has made every effort to comply, but has been unable to do so within the time limits allowed or at all;
iii) His failure to raise finance is in large part due to the actions of the Claimant and its sister company, Olympia Holding AS ("Olympia"), which has itself obtained freezing orders in Norway and Sweden in support of a claim against the Defendant and has also interfered in his attempts to conclude two possible deals in December 2001, which would have netted sufficient funds with which to meet the £1.175m payment condition;
iv) The Claimant has obtained (in particular) a freezing order in Sweden in support of its judgment in this claim, which embraces assets valued by the Swedish Court in February 2001 at SEK 78.7m (about £4m). Mr Berr was not informed of the value put upon these assets by the Swedish Court officials, but he did have evidence before him from Mr Ashton, the Claimant's English solicitor who has conduct of these proceedings, stating that the assets were worth only £700,000. Subsequently, in a letter dated 11th February 2002, Mr Ashton has admitted that he was not aware of the value of SEK 78.7m at the time of making his witness statement and has accepted that his estimate of value was apparently not factually correct.
"But the striking thing about the report from the Swedish Court of Enforcement and Execution is that although that was not drawn to the attention of the learned deputy judge, it is plain - and Miss Higgs confirms - that it was within the knowledge of the defendant himself, although he did not draw it to the attention of his English lawyers. In those circumstances, the alternative application which Miss Higgs has not made, but has intimated to me, that the existence of this order might be a justification for a wholesale review of Mr Berry's order, is simply not tenable, because although, no doubt, his English lawyers were unaware of it, he was aware of it, he knew of the figure of 47 million Krone as the estimate in February of the value of the claims and relevant assets frozen. Whether that is, in fact, now the value is a quite different matter. If it had been thought to be of materiality, he could have caused it to be put before the court. He did not. The fact that he did not seems to me to bar any suggestion that the basis of Mr Berry's order should be reviewed."
It seems to me, therefore, that although Lloyd J had no formal application before him to set aside Mr Berry's order, he in effect heard the very same argument which I have heard on this application today. He rejected any suggestion that there could be a successful attempt to set aside Mr Berry's order on those grounds, because this is a case where the Deputy Judge's failure to consider the effect of the freezing order and the Defendant's asset position was simply the result of the Defendant's failure to communicate those facts to his representatives and their failure to raise them as issues which they considered relevant to the exercise of the Judge's discretion. In these circumstances this seems to me, as it did to Lloyd J, a case where the Defendant is really seeking to re-argue the application that was before Mr Berry, on grounds which were available to him then, but on which he chose not to rely. That is not a course which, in my judgment, it is open for this Court to take. The only possible course open to the Defendant is to seek to appeal Mr Berry's order out of time and to apply to admit new evidence in the form of the material about the freezing orders. In saying this, I do not intend to indicate that those applications would necessarily have any prospect of success, but those are matters for the Court of Appeal, not for me.