England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		14 May 2010

See: Costs

MR JUSTICE MORGAN:

1. This is an application in the case of Abbey Forwarding Limited (in liquidation) ("Abbey") against Mr Hone and others. The Application Notice was issued on 21 April 2010 and was by the second and third defendants, Patrick Daniel Owen and William James Owen.
2. The application is for an order that an earlier freezing order, which has been made against the second and third defendants, be varied to allow them to make a loan of money to a company called Wingpitch Limited ("Wingpitch").
3. This application was part-heard on 7 May 2010 when the legal principles were identified and the basic facts were established. I indicated on the last occasion that I was not prepared to deal with the matter finally on that day as it seemed to me that many matters I had been told should be verified by a witness statement and many matters that I was asked to assume should also be the subject of evidence on which I could make a more confident finding, rather than assuming matters to be so. I gave directions for the applicants, Messrs Owen, to put in further evidence. They did not as such comply with that direction. They did not serve the evidence in the time permitted, but today I have a witness statement of William James Owen dated 12 May 2010, which touches on some of the matters discussed last week.
4. The claimant, Abbey, who is the respondent to this application, does not ask for an adjournment and is content for the matter to go ahead and for me to take into account the witness statement of William James Owen. I shall proceed accordingly.
5. The freezing order, which is referred to in the Application Notice, was made by Blackburne J on 4 February. I do not pretend to know the full detail of the litigation in which this freezing order has been made, but in very brief outline I can indicate some of my understanding. Abbey occupied warehouse premises in the London Borough of Greenwich. It was asserted by Her Majesty's Revenue and Customs that goods had gone missing from the warehouse in circumstances whereby payments of duty, which ought to have been made to HMRC, were being avoided. HMRC asserts that the payments of duty payable by Abbey to HMRC are of the order of £5.95 million. HMRC applied to appoint a provisional liquidator of Abbey , and I understand a provisional liquidator was appointed. Abbey , then under the control of the provisional liquidator, applied for freezing injunctions against three directors of Abbey , namely Mr Hone and the two Messrs Owen. That was the freezing order that was made.
6. The hearing for the appointment of the provisional liquidator and the application for the freezing injunction were both ex parte, but there was no subsequent attempt to set aside the appointment of the provisional liquidator or any subsequent winding-up order, nor to set aside the freezing injunctions. Instead the claim, brought by Abbey against the three former directors, is to proceed to trial. Although I do not pretend to understand the detail of the claim, I proceed on the basis that what is being said by the company Abbey is that the three directors have acted in breach of duty owed to the company in placing the company under a liability to HMRC which the company is not able to meet. If the claim were to succeed, Abbey would at best recover the £5.95 million from the directors.
7. I am told that the matter is to be defended. The trial is fixed for a date in July with a time estimate of fifteen days. I remind myself that I am in no position whatever to judge who is right and who is wrong in relation to the issues which will be determined at the trial. I must proceed on the basis that it is just as probable that the directors will succeed on every point as it is that they will fail on every point. I have no ability to determine today which of those eventualities is more likely.
8. The freezing order contained standard form provisions in paragraph 10 of the order. Paragraph 10(1) permitted payments to be made for reasonable living expenses and for legal advice and representation. Paragraph 10(2) is in these terms:

"This order does not prohibit the respondent from dealing with or disposing of any of his assets in the ordinary and proper course of business."

Paragraph 10(3) refers to the possibility of the parties agreeing variations of the order. It was therefore contemplated that the order was one which could be varied, certainly by agreement.

9. What has led to the present application is a desire by the two Messrs Owen to make a loan of a sum exceeding £50,000 to a company called Wingpitch. Wingpitch is the long lessee at a ground rent of the warehouse premises formerly occupied by Abbey . Before the appointment of the provisional liquidator, Abbey was either the sub-tenant or the licensee of those premises (I know now which) in circumstances where it paid £33,000 per month to Wingpitch, the long-leasehold owner of those premises. The premises are substantial warehouses comprising two parts: one, a warehouse of 27,000 square feet, and the second, a warehouse of 20,000 square feet (although it can be sub-divided into two parts). The total area is 47,000 square feet.
10. Before the appointment of the provisional liquidator, the position was very straightforward. Wingpitch held a substantial asset -- the lease -- at a ground rent and received very substantial rent from Abbey. Indeed, Wingpitch does not have any other business. Its activities are confined to holding this asset and, in former times, receiving a substantial rent from Abbey. The result was that Wingpitch was in a position not to rely on funding or loans from directors or others and was in a position either to return substantial income by way of dividend to its shareholders, or by way of salary to its directors.
11. Mr Patrick Owen and Mr William Owen are both directors of Wingpitch. Further, they each own 30% of the issued share capital of Wingpitch. The remaining 40% of the shares in Wingpitch are held by members of the families: 50% of the shares by Patrick Owen and his family, and 50% of the shares by William Owen and his family. That was the position so far as Abbey's occupation was concerned prior to the appointment of the provisional liquidator.
12. With the appointment of the provisional liquidator everything changed. Abbey ceased to trade. The liquidator disclaimed the interest that Abbey had in the warehouses. Wingpitch found itself left with vacant warehouses and no income from Abbey or anyone else. That had a number of consequences, one of which has led to the application today.
13. Because the premises are unoccupied, the liability to pay the uniform business rate fell upon Wingpitch. I have been given some figures showing the rating position. For the year to 31 March 2010 Wingpitch owes the London Borough of Greenwich a total of £25,500 (in round figures) of unpaid rates, together with legal costs. Wingpitch has also received a non-domestic rates bill for the year beginning 1 April 2010. The sum stated as due for the year is £73,500 (in round figures). The London Borough of Greenwich is prepared to accept payment by instalments and the instalment plan, identified in the bill, provides for monthly payments beginning on 1 April 2010. The payment for the first month is £7,331. Payments for later months are a fraction higher, but of a similar amount.
14. Payments for the four months, April, May, June and July, up to the date of the trial, total £29,336. The two Messrs Owen wish to make a loan of enough money to enable Wingpitch to pay the £25,500, to which I earlier referred, plus the £29,336, which will cover the payment of rates up to 1 August 2010. It is not clear what the London Borough of Greenwich will do if those payments are not made by Wingpitch. The possibility that has been emphasised in the course of argument today is that the London Borough of Greenwich will wind up Wingpitch, and a liquidator will be appointed. The liquidator will seek to realise the assets of the company. Its principal and only asset is its long lease of the warehouses. That long lease, which currently has a value of hundreds of thousands of pounds, will be sold off by the liquidator and the theory is that the asset will not realise its true or maximum market value.
15. The other consequence of Wingpitch having a vacant warehouse or warehouses is that it has made efforts to re-let those warehouses. The information about those efforts is not very full. It appears that recent negotiations broke down. Fresh negotiations with a new potential occupier have recently begun, but have not proceeded very far. It is possible (I say no more) that there will be a letting of these premises as the weeks and months go by. It may not be the entirety of the warehouse accommodation. The current negotiations, as I understand it, relate to 27,000 square feet.
16. The other relevant fact about occupation of the warehouses is that 9,000 square feet are occupied by a partnership called "Abbey Fireplaces". The two Messrs Owen, with whom I am concerned, are, I am told, partners in that partnership, but, as I understand it, they are not the only partners. It is therefore possible for Abbey Fireplaces to pay to Wingpitch for its occupation of its 9,000 square feet. Indeed, I am told that they are liable to pay at the rate of £3,000 per month.
17. The application I have described is for a variation of the freezing order to allow Messrs Owen to pay monies to Wingpitch. The first thing to consider is where this money might come from. In the course of argument today I was given some historic information about the assets of the two Owens which have been frozen. I am told that they have a bank account in Abu Dhabi, which at one point contained £700,000, jointly owned by them. Today the figure is thought to be significantly less, but it is plainly enough to make the advance to Wingpitch to which I have referred.
18. The case for the Owens is put in two different ways. The first is, notwithstanding the terms of the Application Notice, that no variation is needed because the order already permits the two Messrs Owen to deal with their assets, including the money in Abu Dhabi, in the ordinary and proper course of their business. It is said that the making of a loan to Wingpitch (a company of which they are the directors and where they between them have 60% of the shareholding) is in the ordinary course of business. The other way in which the matter is put is that if the intended loan is not covered by paragraph 10(2) of the order, the court retains a jurisdiction to vary the order and the facts here are such that it is just to permit such a variation.
19. I will deal first with the suggestion that the intended advance to Wingpitch is something already covered by paragraph 10(2) of the order. I do not see it that way. The order refers to the ordinary and proper course of business. I am satisfied that the intended advance is proper within that phrase. It is not suggested that this is some device or scam to release money from the freezing order and dissipate it in an inappropriate way. The question becomes whether the payment by the Owens to Wingpitch by way of loan is in the ordinary course of business. I do not see this as being the ordinary business of the Owens. True it is that they are established directors and shareholders of Wingpitch, but the way in which that business has been carried on in the past has not involved them lending money to Wingpitch. I am not told of any Directors Loan Account. Indeed, I am told that the money has always moved the other way. Wingpitch has had a substantial income from Abbey and has been able to return funds to directors and shareholders. The Owens' intention to make an advance to Wingpitch involves them stepping outside anything that has happened before and anything that is in the nature of an established practice. In my judgment they are stepping outside the ordinary course of business as the order is to be construed.
20. However, that is not the end of the matter. Indeed, it is the beginning of the application which is to vary the freezing order. My attention has been drawn to a number of decided cases as to the approach I should adopt in relation to an application to vary the freezing order. In particular I have been referred to Avant Petroleum v Gatoil (Overseas) Inc [1986] 2 Lloyds LR 236, Atlas Maritime v Avalon Maritime (The Coral Rose) [1991] 1 Lloyds LR 563, and an unreported decision in Noga and Others v Australia and New Zealand Banking Group and Others [2006] EWHC 602 (Comm), a decision of Christopher Clarke J. That latter case involved an application for a variation of a freezing order. It was not suggested that the payment which was desired to be made in that case was part of the ordinary business of the party against whom the order had been made. In paragraph 9 of his judgment the judge helpfully set out the principles he intended to apply. I will not lengthen my judgment by reading them, but I will act upon those principles and apply them to the facts of this case. Counsel for Abbey advanced these as the relevant principles, and I did not understand counsel for Messrs Owen to suggest that they were in any way inappropriate. Amongst the principles stated, the following matters seem to me to be of great significance in the present case. I have regard to the interests of justice. I have regard to the purpose of a freezing order. I have regard to the policy behind the making of a freezing order. I should consider the overall justice of allowing the payment to be made, including the consequences if I do permit it to be made and if I do not permit it to be made. I also have regard to the alternatives for Messrs Owen, in particular whether there are other funds or sources of money which would be available to them or those associated with them. I do that in order to assess the overall fairness of allowing them to draw upon the frozen funds instead of taking some other course. In the Noga case the learned judge also expressed scepticism about some of the assertions made by the parties in the case before him.
21. In applying those principles to the facts of this case, a number of matters weigh with me. First, the money which is frozen is still the property of Messrs Owen. It is not the claimant's money. The freezing order is of the conventional kind. It is not a freezing order to give effect to a proprietary claim by the claimant to the money. It is also well-established that a freezing order does not vest any proprietary interest in a claimant or give a claimant a security interest over the frozen funds.
22. The second matter is that I do not know today who will succeed at the forthcoming trial. There is an evens chance that Messrs Owen will be vindicated, that they will establish that their assets should never have been interfered with, and they will then have their assets released to them again so that from that time they will be able to use their assets as they wish, and they will be able to make an advance to Wingpitch as they wish.
23. Another matter particular to the facts of this case that I must acknowledge is that the intervention of the provisional liquidator has had these devastating consequences, not only on Abbey , but also on Wingpitch. Wingpitch had previously a good, regular source of income from Abbey pursuant to a sub-tenancy or licence. That sub-tenancy or licence was disclaimed, throwing vacant possession on Wingpitch at what is an extremely difficult time for commercial landlords. The Owens want to keep Wingpitch alive and not put it into compulsory liquidation so that when they reach the end of the trial process they no doubt hope they will emerge and be able to carry on as they always wanted to do.
24. However, another weighty consideration is whether Messrs Owen could obtain the money they want to advance from another source. That matter was investigated a week ago. Counsel who then appeared for the Owens did not have any evidence to put before me as to that matter. He asked me to assume a large number of facts, which I indicated I was not prepared to do. Today I have something more -- not, I confess, as much as I had expected, but something more on those matters. On the basis of the material before me today I consider that there will be difficulties in the money needed to pay Greenwich being found from another source. I can see that Wingpitch itself will have difficulties in raising the funds. Mr Shaw, who appears for Abbey, tells me that there is a possibility that Greenwich might take a charge over Wingpitch's long lease rather than pressing for payment and liquidation. That might be so, but it is at best speculation. I cannot say that it will be straightforward. It requires the agreement of Greenwich in circumstances where they are under no obligation to do anything other than press for payment.
25. Another suggestion which has been made is this. Each of the Messrs Owen lives in a substantial house, as to which I have been given some information. The houses are jointly owned by the relevant Mr Owen and his wife. There is on the face of it substantial equity and Mr Shaw attractively submits that it should not be difficult, where there is an existing mortgage which no doubt provides for further advances to be secured, for the joint owners to go to the established lender and say, "We want at little bit more, £25,000 on each house", and all should be well.
26. This is the only point I find difficult to assess in the case. It was a point that was raised last week. The Owens should have done more to address it. If they are right that the suggestion is a non-starter, it is for them to explain how and why that is the case. Mr William Owen's witness statement does very little in this respect. He says that his wife (and no doubt the wife of Patrick Owen is in a similar position) is not in employment and so has no income of her own. It is said that she has no significant assets in her own name. I would have wanted something rather more convincing than that. On the other hand, it was obvious last week that the Owens had not taken any steps to obtain this evidence before last Friday, and the time since last Friday has been comparatively short. Other things have been happening. For example, there have been negotiations with Greenwich and negotiations with the prospective lessee for the premises. In those circumstances I will not take too harsh and critical a view of the state of the evidence on the point. I will do my best to assess the possibilities, having regard to practical experience and a high dose of reality.
27. It seems to me that it is very far from certain that the money can be raised by further borrowing secured on the family homes, although it is possible. This is not necessarily the only point, nor is it necessarily the point on which everything will turn. I must take into account that there is an element of doubt on the matter. I take into account in favour of the Owens that it has not been established that this other route exists, but I take into account against the Owens that they could have done rather more to satisfy me that it was a non-starter.
28. At the end of the day, applying the principles in Noga, weighing the various factors which go different ways and which I have attempted to describe, my overall conclusion, by a very short head, is that it is just to permit the Owens to make a loan to Wingpitch to some extent. I propose to indicate the extent to which I will permit a release of frozen monies for this purpose. Taking up the figures as to rates that I have been given, as to the figure of £25,469, the subject of the summons in the magistrates' court, it seems to me that that is a proper sum to be advanced from frozen funds.
29. I turn to the rates bill for the year commencing 1 April 2010. The Owens ask for four months of that to be advanced. I will limit them to three months, namely April, May and June. We are currently in the middle of May. To avoid the necessity for another application to the court in early June, I will deal with the month of June today and not leave it until later. I will not, however, deal with the month of July because by July things may have changed. There may be a letting, which means that Wingpitch is not liable to pay an empty property rate and secondly it will have an income possibly from the incoming lessee. So I limit it to three months, not four.
30. That is not the end of the story. I am told in the evidence that Abbey Fireplaces has been in occupation of 9,000 square feet since April 2010. They should be liable for the rates, and Wingpitch should not be liable for the rates. I have not been given any real information as to how this should be dealt with. I have had a look at the statutory provisions which seem to me to apply. In the absence of further help from the parties, I propose to limit the amount which is properly payable in the following way. Of the 47,000 square feet of space in question, it is only the rates on 38,000 square feet which are to be the subject of this advance to Wingpitch. For the sake of convenience, I would suggest that the figures in the rates bill are reduced by a fraction of 38 over 47.
31. There remains a further point. Mr Owens says in his evidence that Abbey Fireplaces has been liable to pay at the rate of £3,000 per month since April 2010. It seems to me that that money should be used first and foremost to help Wingpitch pay these rates. For the three months with which I am concerned, there is already a liability for Abbey Fireplaces to pay three times £3,000, that is £9,000. I shall reduce that figure to £8,000 as there may have been other outgoings. From the sums I will permit, there is to be deducted £8,000, which should not come from the Owens but should already have come from Abbey Fireplaces. The calculation is to be done in the way I have described.
32. There is a possibility that the warehouse will be income-producing if there is a letting of 27,000 square feet, as has been discussed. If that comes about, then plainly the rates liability of Wingpitch ends and Wingpitch will receive perhaps as much as £80,000 (£20,000 a quarter). I would want the order which permits the Owens to draw on frozen funds to place the Owens under an obligation that they will procure Wingpitch to restore frozen funds out of the rent as soon as practicable. I have not drafted the precise form of words, but the concept I am describing ought to be apparent. Counsel should co-operate, act reasonably and agree a form of words to deal with that matter. If they cannot agree, the matter can be either mentioned or dealt with in written submissions.
33. That is the variation of the freezing order which I shall permit. Is there anything else?

MR GLOVER: My Lord, two points arise. First of all, in relation to the order, my Lord, it may well be the case -- and in fact I am instructed to give it, but the court may prefer to stay with the order -- that the Owens would give an undertaking to procure that repayment, which makes good sense. I raise that now. My learned friend may have some comments on that. The court may prefer that route rather than making it part of the order.

My Lord, obviously the issue of costs arises.

MR JUSTICE MORGAN: Yes.

MR GLOVER: There are two costs schedules in place. The defendants say that they are entitled to the costs of the application that they have made. You have looked at the inter-parte correspondence. The position was adopted by the liquidator --

MR JUSTICE MORGAN: Yes.

MR GLOVER: The pre-issue was: show us some evidence that it cannot come from elsewhere, and they talked about the assets of Wingpitch when they were asking for that information.

MR JUSTICE MORGAN: Yes.

MR GLOVER: That information was provided. There was then silence from the liquidator until after --

MR JUSTICE MORGAN: I think what they asked you was -- I am looking at the correspondence of 25 March -- they said: "We are prepared to be persuaded with proper information. You have not provided any evidence about Wingpitch's assets, etc. We are unclear why frozen monies should be applied in this way when the company may be in a position to raise funds itself".

MR GLOVER: Indeed.

MR JUSTICE MORGAN: You did not really address that, did you?

MR GLOVER: Well, my Lord, in our letter we made it clear that Wingpitch does not prepare management accounts. Its only trading is renting the warehouse. It currently has no tenant. Here is a copy of its last bank account which shows its cash position, its assets. Apart from that single lease, it has liquid assets of minus £320. It then went on to note that, in the absence of income, the company is not in a position to obtain any borrowing and in any event it would have to be guaranteed by the directors who were subject to the freezing injunction.

MR JUSTICE MORGAN: Yes. You did not say why you could not charge the valuable long lease.

MR GLOVER: My Lord --

MR JUSTICE MORGAN: That is the correspondence.

MR GLOVER: My Lord, that is the correspondence.

MR JUSTICE MORGAN: Right.

MR GLOVER: We say we were forced to make our application. We made our application. It is being defended. Principally it was engaged with, we would respectfully submit, on the wrong basis. The application was in terms to vary the injunction. It was defended in the skeleton argument on the basis that the application was to apply the ordinary course of business.

We ask for our costs. I have two costs schedules. One from the last hearing and one from the hearing today. The one from the hearing on 7 May totals --

MR JUSTICE MORGAN: I do not have these.

MR GLOVER: My Lord, can I hand up copies?

MR SHAW: My Lord, I would wish to make submissions on the principle about who is paying what before one gets into the figures.

MR JUSTICE MORGAN: Well, I was quite interested to see the figures, but you are quite right. These figures may be academic. I am not going to say anything more. But let me see the figures. (Pause) I am not going to do a summary assessment at this stage, if I do it at any stage. You say you should have the costs of both hearings because you have succeeded?

MR GLOVER: My Lord, of course my learned friend will make no doubt attractive submissions --

MR JUSTICE MORGAN: Well, you can reply to his attractive submissions. If you anticipate them and he answers your anticipation and they you reply to what he has said, then we say things three times.

MR GLOVER: Indeed, my Lord.

MR JUSTICE MORGAN: Yes, what do you say about costs?

MR SHAW: My Lord, as matters stood last week, your Lordship's observation was that were it not for some further evidence you called for, you would have been minded to have dismissed the application.

MR JUSTICE MORGAN: Yes.

MR SHAW: And I say on that footing, certainly insofar as the costs of last week were concerned, or anything up to last week, that we should have our costs because that would have been the outcome.

MR JUSTICE MORGAN: Yes.

MR SHAW: What has happened in the intervening period is some further evidence has been provided which was not available when the application was issued; nor was it available last week --

MR JUSTICE MORGAN: Yes.

MR SHAW: -- which "by a head" was your Lordship's expression --

MR JUSTICE MORGAN: A hair's breadth, yes.

MR SHAW: -- persuaded your Lordship to grant the application --

MR JUSTICE MORGAN: Yes.

MR SHAW: -- on a liberty basis.

MR JUSTICE MORGAN: Yes.

MR SHAW: My Lord, that of course is based on fresh evidence which --

MR JUSTICE MORGAN: What do you say is the right order?

MR SHAW: I think the proper order is that we should have our costs of up to and including the hearing last week, and there should be no order for costs for the following week -- this week.

MR JUSTICE MORGAN: Right. Thank you. Yes, Mr Glover?

MR GLOVER: My Lord, one is, of course, struck by the boldness of the submission. The application was not determined until today. It is always a case that evidence goes one way and another. We have had this further opportunity to put in evidence and we have succeeded. I do not know what was in the court's mind last week -- whether it was a dead cert that we were going to lose or whether submissions put properly on behalf of the defendants might have swayed the court even in light of the court's suggestions that further evidence was required.

MR JUSTICE MORGAN: Yes.

MR GLOVER: The point remains that further evidence has been produced. At no point has the liquidator sought to acquiesce the application. The application has been successful. The evidence that was put forward before the court last week has not been wholly wasted. We have referred to the earlier and the original witness evidence in support of the application which put down a number of planks. There is no reason that the costs of that evidence should not be paid for. The only thing that one might have to agree to is that some of the costs of the attendance at the hearing last time were wasted and therefore the defendants should not perhaps have the costs of the attendance at the last hearing, which was not effective because the court considered that further information was required for the court to form a proper and accurate view of the case. However, it remains that on the Application Notice, which was issued in light of silence from the liquidators, there has been success on the issue. It may only be success by a hair's breadth, but it matters not. There is still success there. We have won on that issue and we should have our costs, albeit there may need to be a reduction to reflect the adjournment which occurred last week and the costs that would have been occasioned to the claimant on that adjournment.

MR JUSTICE MORGAN: Thank you.

(JUDGMENT ON COSTS)

MR JUSTICE MORGAN:

34. I will make no order as to costs of this application. I take into account a number of matters. I take into account the fact that the defendants had to seek a variation of the order. They asked for a variation by agreement, as the order contemplated. The liquidator of Abbey Forwarding Limited did not say "No", but said it could be persuaded. The attempts to persuade were not very great. They did not involve repeated communications thereafter, it is true, and so the application was made.
35. At the hearing last time, as indeed at the hearing today, the Owens put forward the case that this was in the ordinary course of business and so was something already contemplated by the order. They failed on that. They have succeeded, narrowly, on the variation of the order. They have not put their best foot forward in terms of evidence. They have managed to succeed, but I must take into account the position of Abbey Forwarding who faced evidence that was not the sort of evidence that should have been adduced on an application of this kind. There might be some merit in giving Abbey its costs of the last hearing and giving the Owens the costs of this hearing, but I think that instead of having two assessments, the right course is to wrap it up together in circumstances where each side will pay their own costs of this exercise. That is the order I make. Thank you.
36. I would ask you to agree a minute of order. I am confident that you will be able to agree it.

MR SHAW: My Lord, if we are able to agree it, does your Lordship want to see the minute the minute?

MR JUSTICE MORGAN: I think I would like to see it, yes. Yes, it is not burdensome for me to see it.

MR GLOVER: My Lord, there was the issue of the undertaking as against the point of an order --

MR JUSTICE MORGAN: I think you should discuss that and see what can be agreed. If you cannot agree the drafting, then I will look at the two rival drafts.

MR GLOVER: Yes, my Lord.

MR JUSTICE MORGAN: Thank you.

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