England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTIES COURT OF ENGLAND AND WALES
CHANCERY DIVISION
COMPANIES COURT

		Rolls Building Fetter Lane London EC4A 1NL
		23 May 2018

Mr. Justice Marcus Smith

1. On 6 November 2017, I handed down judgment in a section 994 petition (the "Judgment", [2017] EWHC 2767 (Ch)). The Judgment ordered a buyout of the shares held by the Petitioner in Blackpool Football Club Limited – the Fourth Respondent – for a consideration of some £31,270,000. On top of that came costs, interest and other matters.
2. When I handed down the Judgment, the First, Second and Third Respondents sought time to pay. The time they sought was well in excess of the usual 14 or 28 days in which a judgment debt is normally to be satisfied. The First, Second and Third Respondents were seeking up to 12 months to pay.
3. The Order that I made on 6 November 2017 (the "6 November Order") provided a limited stay. The 6 November Order provided that:

(1) The First to Third Respondents should pay £10,000,000 by 4pm on 4 December 2017 (paragraph 7).

(2) The First to Third Respondents should, by 4pm on 20 November 2017, apply for a further order specifying dates for the payment of the balance, that application to be reserved to me (paragraph 8).

4. The thinking behind this order was to give the First to Third Respondents a month to find a substantial portion of the judgment debt (i.e. £10,000,000) and time to apply (with evidence) for a timetable for the payment of the balance. Evidence was required to substantiate the contention of the First to Third Respondents that they had substantial means, sufficient to pay the judgment debt, but that these assets were illiquid and that time to pay was required to avoid a "fire sale" and damage to the businesses of the First to Third Respondents.
5. The Petitioner opposed this stay, which was granted notwithstanding the Petitioner's opposition. To protect the Petitioner's position, certain safeguards were built into the 6 November Order:

(1) A requirement to provide information about the First, Second and Third Respondents' assets (including assets of companies under the direct or indirect control or ownership of the First, Second and Third Respondents (the "Oyston Group")) (paragraph 9).

(2) The First, Second and Third Respondents' assets were frozen on the terms set out in paragraphs 11 to 22 (the "Freezing Order"). Paragraphs 11 and 12 provide:

"11. Until further order of the Court, and subject to paragraphs 13 to 16 below, each of the First to Third Respondents must not:

(a) remove from England and Wales any of its or his assets which are in England and Wales; or

(b) in any way dispose of, deal with or diminish the value of any of its or his assets whether they are in or outside England and Wales.

"12. Paragraph 11 above applies to each of the First to Third Respondents' assets, including assets owned or controlled by any company in the Oyston Group, whether or not they are in its or his own name and whether they are solely or jointly owned. For the purpose of this Order, each of the First to Third Respondents' assets include any asset which it or he has the power, directly or indirectly, to dispose of or deal with as if it were its or his own. Each of the First to Third Respondents are to be regarded as having such power if a third party holds or controls the asset in accordance with its or his direct or indirect instructions."

6. It is right to say that this protection to the Petitioner was the "price" for the stay granted to the First to Third Respondents. The First to Third Respondents did not seek to persuade me that I should make the 6 November Order without these safeguards to the Petitioner.
7. As a result, there was no argument about post-judgment freezing order relief, whether in the context of a stay or otherwise. It is a matter of speculation whether – had no stay been granted – the Petitioner would nevertheless have sought a freezing order and, if so, whether I would have granted it.
8. The matter came before me again on 18 December 2017. By that stage, the payment of £10,000,000 had been made by the First to Third Respondents to the Petitioner, leaving a balance of just under £25 million outstanding. That figure, I should say, is something of a moveable (albeit generally monetarily increasing) feast because there are interest obligations and costs accruing in relation to that sum. I shall refer to the figure as amounting to £25,000,000.
9. I should also note that, during the course of these proceedings, the Third Respondent has, effectively, dropped out of the litigation, and that references to the "Respondents" in this Ruling should be treated as references to the First and Second Respondents only. The Fourth Respondent, of course, is joined simply to be bound and has played no part in these proceedings.
10. At the hearing before me on 18 December 2017, I considered various options for the future. Having heard from both the Petitioner and the Respondents, I ordered that:

(1) A sum of £10,000,000 be paid before 4.00 pm on 31 January 2018;

(2) A sum of £7,500,000 be paid by 4.00 pm on 30 March 2018;

(3) A further tranche of £7,500,000 be paid by 31 May 2018; and

(4) There be a rump payment, which I did not seek to calculate, payable by the end of June 2018.

I shall refer to the order imposing this timetable as the "18 December Order".

11. The effect of this timetable was that the bulk of the monies owed by the Respondents to the Petitioner would be payable by the end of May 2018. The June 2018 payment envisaged by my order would be very much a minor balancing payment to sweep up the remaining obligations.
12. As my ruling on 18 December 2017 makes clear, I was unimpressed by the evidence adduced by the Respondents (see paragraphs 10 to 13 of the ruling), although I absolved the Respondents of the deliberate withholding of relevant material (see paragraph 12). But I did not regard the information provided by the Respondents regarding their financial position and cash-flows as satisfactory at all. It was in the light of this evidence that I imposed the timetable described in paragraph 10 above.
13. My ruling also noted:

(1) That there could be, in light of the deficiencies of the evidence adduced and subject to one concession described below, no question of rolling back the protections conferred on the Petitioner in the 6 November Order (paragraph 17).

(2) That a stringent plan of payment was necessary in order to concentrate the Respondents' minds (paragraph 18).

(3) That it was appropriate to incorporate a concession into the Freezing Order regime. This concession related to ensuring that the Respondents had sufficient money to carry on in business. My ruling noted:

"26. …I have in mind that a company such as the Oyston Group does require cash flow. My problem is that I do not know what that cash flow need is. What I have done is to impose a timetable for the payment of the Respondents' debts to the Petitioner, but I am going to make it clear that the money sitting in the bank accounts, the £3.1m as at 4 December (and no doubt it is less now, as Mr. Steinfeld [Q.C., then acting for the Respondents] submitted), that money can be used as working capital. I acknowledge I do not know what working capital the company requires with any precision, so I am minded to sweep up into the payments that can be made from this account any payments by way of living expenses and legal expenses, so that the Freezing Order can be tightened so that there can be no question of any charging or selling any asset, save in order to discharge the obligations that the Respondents owe to the Petitioner.

27. I also make clear that there is an obligation on the Respondents, not to seek prior consent regarding the use of these monies, but to notify the Petitioner within 24 hours of any payment that is made out of any of these accounts. So the freezing order remains in place as regards this £3.1m, but with considerable liberty on the part of the Respondents to use those funds.

28. Now, I fully acknowledge that this course involves a degree of risk to the Petitioner, in that those monies might be disposed of to the detriment of the Petitioner. I would only say this, that I have balanced that risk against the timeframe that I have imposed in terms of the payment of the balance of the £34m odd that is due. When, as I am sure it will, this matter comes back to me, if there is an application to vary the first date that I have made for £10m to be paid at the end of January 2018, I will certainly expect to see a very detailed schedule, objectively produced, as to how this cash flow money, this working capital, has been used."

14. The 18 December Order, in paragraph 2, thus freed for the Respondents' use, a considerable amount of money (of the order of £3,000,000), which the Petitioner might otherwise have applied in discharge of the judgment debt.
15. Unfortunately, the payment of £10,000,000, due on 31 January 2018, was not made by the Respondents. On 5 February 2018, an application on the part of the Respondents to extend the time for paying this tranche to 19 February 2018 was made. It was contended by Mr. Collings, Q.C., who appeared for the Respondents in succession to Mr. Steinfeld, Q.C. (who had represented the Respondents up to this point in time), that payment by that date could confidently be expected, and that the Respondents had done their level best to realise assets, had failed to do so, and needed this additional time in order to put in place what he called a "bridging loan", so as to enable the tranche due last week to be paid.
16. The application was originally much more broadly based. The Respondents' initial application was one which sought to remove the various stages of payment, that is to say, the 31 January 2018 and 30 March 2018 stage payments, simply obliging the Respondents to pay the full amount due on or before 31 May 2018 as and when they were capable of realising their assets.
17. That broad application was not pursued after certain exchanges between the Court and Mr. Collings, Q.C. and, as I have indicated, the application on the Respondents' part came to be a relatively narrow one, simply to extend time for the January 2018 tranche to 19 February 2018, but to leave the rest of the regime as ordered by me on 18 December 2017 unchanged.
18. I declined this application for the reasons that I gave in my ruling on 5 February 2018. Instead, I acceded to the contentions of Mr. Green, Q.C., for the Petitioner, that the staged payment regime be abrogated and that the Petitioner be entitled at its discretion to take whatever steps it considered necessary to enforce the judgment debt.
19. Obviously, this conclusion involved a re-writing of the 18 December Order to the Respondents' detriment. I was entitled to vary the order in this way because of a number of material changes that had occurred since the order had been made. These material changes are described in paragraphs 12 to 33 of my ruling.
20. Since 5 February 2018, the Petitioner has sought to enforce against various of the Respondents' assets. It is unnecessary to go into too much detail, but the position is as follows:

(1) The Petitioner has recovered some £606,000 pursuant to various third party debt orders made pursuant to CPR 72.

(2) Charging orders over various properties and shares have been made pursuant to CPR 73. Some of these charging orders have been made final, some are still interim.

(3) The Petitioner, by various Part 8 Claims, seeks the sale of various properties the subject of charging orders. The Second Respondent has made clear that these claims will be opposed, but no evidence had been served by him in this regard at the date of the hearing.

21. The Respondents now apply to discharge, or alternatively to vary, the Freezing Order. It is variously said that:

(1) The requirements for the imposition of a post-judgment freezing order have not been met, in that there is no affidavit evidence deposing to objective facts from which it may be inferred that the Respondents are likely to move assets or dissipate them.

(2) In any event, there is no risk of dissipation because the Petitioner is fully protected by the charging orders obtained.

(3) Alternatively, the Freezing Order must be varied in order to:

(a) Bring it into line with the standard form provided for by CPR PD 25A.

(b) Incorporate the usual cross-undertaking in damages.

(c) Remove from the ambit of the Freezing Order the Oyston Group.

22. In my judgment, it would be an error to approach the discharge or variation of the Freezing Order as if this were an application, de novo, for a freezing order. The fact is that the Freezing Order was granted by me at an inter partes hearing at which the Respondents were represented by experienced leading counsel. I have described, in paragraphs 2 to 7 above the circumstances in which the Freezing Order came to be made. There was no argument on the part of the Respondents that the granting of the Freezing Order was inappropriate. Such a submission could have been made. The Respondents could have contended that there was no risk of dissipation. Had such a contention been advanced, no doubt the Petitioner would have responded (if so advised) with evidence in support of its contention that the imposition of a post-judgment freezing order was appropriate, if in their view the findings in the Judgment were insufficient to sustain an application for a freezing order.
23. It is, with all respect to Mr. Collings, Q.C., entirely wrong to suggest that, simply because there is no affidavit evidence going to the question of a freezing injunction, the injunction should be discharged.
24. That does not mean that the question of the imposition of the Freezing Order cannot be further considered. Of course, it can be. The Freezing Order is capable of review in two ways:

(1) First, by way of an appeal to the Court of Appeal. Significantly, although this matter has now been before me four times (6 November 2017, 18 December 2017, 5 February 2018 and 15 May 2018), this is the first occasion on which it has been suggested that it was inappropriate to make the Freezing Order. I regard a submission along these lines as essentially misconceived. Any point regarding the propriety of granting of the Freezing Order should have been taken on 6 November 2017 or not at all. If the Respondents considered that I had made an appealable error on 6 November 2017 in terms of imposing the Freezing Order, that decision could have been appealed. (I note, as an aside, that the Respondents did seek to appeal the substance of my Judgment, but not the Freezing Order. That application for permission to appeal was refused.)

(2) Secondly, by way of an application to a Justice of the High Court to vary the Freezing Order. The Court's power to vary or discharge orders it has made is very well understood and has been described by Rix LJ in Tibbles v. SIG plc [2012] EWCA Civ 518. In this case, as I have described, I am concerned with a freezing order, albeit one that was made post-judgment at an inter partes hearing. Even in such a case, however, the Court must be astute to police the continuing need for the freezing order and to discharge or vary it as appropriate.^[1]

25. Accordingly, I approach this application on the basis that the Respondents are contending that the Freezing Order, properly made, is no longer appropriate in all the circumstances.
26. Clearly, it would not be appropriate to continue the Freezing Order in circumstances where either (i) the risk of dissipation had gone or (ii) the risk of dissipation remained, but the Petitioner was adequately protected in some other way. These were both points advanced by the Respondents. I consider them in turn below.
27. Clearly, the Petitioner, having obtained a judgment in its favour, resulting in an outstanding judgment debt of £25,000,000, it is unnecessary (as Mr. Collings, Q.C. accepted) for the Petitioner to show a good arguable case on the merits. But the existence of a judgment debt does not, of itself, trigger the freezing order jurisdiction. It must still be shown that the refusal of a freezing order (or the failure to continue a freezing order, if one has been made) would involve a real risk that the judgment would remain unsatisfied.
28. In this case, a substantial judgment debt remains unsatisfied, despite the passage of a number of months since the judgment debt became unconditionally due. Judgment was handed down on 6 November 2017. Apart from the payment of £10,000,000 in December 2017, made in the circumstances I have described, no voluntary payment has been made by the Respondents. This is not because of an absence of assets. The Respondents have contended, on a number of occasions, that they are asset rich, but that these assets will take time to realise, because they are illiquid. That is the entire reason why the 6 November Order imposed a stay: in order to give the Respondents time to pay. Yet, in the five months that have intervened since the payment of the £10,000,000, very few assets have been realised, and the Respondents have shown a quite remarkable lack of proactivity. Indeed, so far as the properties which the Petitioner seeks to sell are concerned (see paragraph 20(3) above), the Respondents are actively opposing sale, on grounds yet to be clarified.
29. Where a judgment debtor, having or appearing to have sufficient assets to discharge the judgment debt, takes steps to avoid paying that debt, then the Court is entitled to infer that there is a risk of dissipation. Mr. Collings, Q.C. submitted that a judgment debtor was perfectly entitled to resist, by all legitimate means, the enforcement of a judgment debt against him. I accept, of course, that a court's enforcement processes are hedged around with safeguards for both the judgment debtor and any third parties involved. Of course, the judgment debtor is entitled to avail himself of these safeguards, and should not be penalised for doing so.
30. But, I remind myself, absent the Freezing Order, there is nothing illegal or wrong in the Respondents seeking to so deal with their assets as to render it difficult to enforce the judgment debt against those assets. The whole raison d'être of the freezing order regime is to prevent a judgment debtor from doing what otherwise could lawfully be done. I consider that these facts alone are sufficient to justify the conclusion that, absent the Freezing Order, there is a real risk of dissipation such that the judgment debt to the Petitioner will remain unsatisfied.
31. There are a number of other factors that render this conclusion on dissipation quite inevitable:

(1) The Judgment was rendered after a 16-day trial, at which the Second Respondent gave evidence and where the corporate practices of the First Respondent and the Oyston Group came under the microscope. I shall not repeat the terms of the Judgment, but findings of fact made in Sections E (the general operation of Blackpool FC) and F (unfair prejudice: specific payments away and the failure to pay dividends) of the Judgment clearly demonstrate a real risk of dissipation.

(2) The conduct of the Respondents since the Judgment was handed down has only served to exacerbate my sense that the Respondents' financial affairs are opaque and that, unless restrained by the Freezing Order, assets will be disposed of in a manner that benefits the Respondents, with no regard to the interests of the Petitioner.

(3) The fact that there has been no real progress in realising assets underlines this. The fact that the Respondents choose, in breach of the 6 November 2017 Order, not to disclose the location of all of their assets, does so too.

32. I turn to the question of whether, having found that there is a real risk of dissipation, the Petitioner is sufficiently protected by the enforcement steps taken or could sufficiently be protected by other enforcement steps that the Petitioner might take. The steps taken to date have been described in paragraph 20 above. I should also add that the Petitioner additionally sought a writ of control (CPR 83), but (for reasons that it is unnecessary to go into) the Second Respondent has challenged this writ, and proceedings in relation to this matter are pending in the Queen's Bench Division.
33. I do not consider that the Petitioner is adequately protected from the risk of dissipation by the other enforcement processes available to the Petitioner:

(1) As I have noted (see paragraph 20 above), the Petitioner has obtained various charging orders over property and shares. Attempts are being made to sell some of this property, but these attempts are being resisted.

(2) Annex A to the fourth witness statement of Mr. Christopher Yates, a solicitor and partner in Clifford Chance LLP, the solicitors instructed by the Petitioner, provides details of the Second Respondents' assets over which Part 8 Claims (to sell the property) have been issued. The Respondents laid great stress on the fact that on the Petitioner's own estimated value the value of this property was put at £23,031,500, which is less, but not much less, than the judgment debt outstanding.

(3) I accept that a charging order over real property will confer on the Petitioner a substantial degree of protection in terms of the Respondents being (un)able to deal with such property. However, the estimated value of the real property being sold falls far short of the judgment debt owing, even assuming (which, as I shall describe, is not a safe assumption) that all of these assets are available to satisfy the judgment debt.

(4) The same, however, is not true of a charging order over shares. A charging order applies to the judgment debtor's beneficial interest in a share (and to dividends payable in relation to that share) but does not extend to the property of the company in which the share is held. Two companies in the Oyston Group, Segesta Limited (the First Respondent) and Closelink Limited, are substantially owned by the Second Respondent, whose shareholding is valued at £9.5m-£11m and £3m-£5m respectively. Were these companies to deal with their assets by transferring them away for insufficient value, then these estimates of value would collapse. A charging order cannot prevent such dealings: the Freezing Order can.

(5) I am very conscious that the values attributed to the assets listed in Annex A are estimates. In many cases, a substantial discount has been applied by the Petitioner to reflect the fact that the sale may be a "fire sale". Nevertheless, I am not confident – particularly given the somewhat unsatisfactory evidence in relation to assets filed to date by the Respondents – that these values are particularly reliable. That is particularly true of the shares in what are private companies. I note what Lewison LJ said in Versteegh v. Versteegh [2018] EWCA Civ 1050 at [185]:

"The valuation of private companies is a matter of no little difficulty. In H v H [2008] EWHC 935 (Fam), [2008] 2 FLR 2092 Moylan J said at [5] that "valuations of shares in private companies are among the most fragile valuations which can be obtained." The reasons for this are many. In the first place there is likely to be no obvious market for a private company. Second, even where valuers use the same method of valuation they are likely to produce widely differing results. Third, the profitability of private companies may be volatile, such that a snap shot valuation at a particular date may give an unfair picture. Fourth, the difference in quality between a value attributed to a private company on the basis of opinion evidence and a sum in hard cash is obvious. Fifth, the acid test of any valuation is exposure to the real market, which is simply not possible in the case of a private company where no one suggests that it should be sold…"

(6) It is well established that the freezing order prevents dissipation but confers no priority. There may well be other claimants to the assets the subject of the Freezing Order. If so, then even if assets in excess of the judgment debt were frozen – which I do not consider to be the case – I would have to take account of the potential for rival claims in priority of the claims of the Petitioner to the same asset. In this case, there is at least one party who may have a substantial claim that may have priority over the Petitioner:

(a) Mrs. Vicki Oyston is the Second Respondent's wife. She married Mr. Oyston in 1962 and in 1988, having been divorced from him in 1982. She again petitioned for divorce on 12 December 2017 and a decree nisi was granted on 14 February 2018.

(b) Very shortly before this hearing, Mrs. Oyston's interest in the property the subject of the Freezing Order was drawn to my attention. This interest potentially arises in one or both of two ways:

(i) Mrs. Oyston may, irrespective of what order the Family Court may make, have a beneficial interest in one or more of these properties. If she does, that would likely rank in priority to the interest of the Petitioner, although (of course) everything turns on the relevant facts.

(ii) Mrs. Oyston may obtain an order for financial provision from Mr. Oyston. I have not been addressed on the effect that such an order, if made, would have on the Petitioner's claims, but I do not consider that I can properly leave this factor out of account.

(c) To date, Mrs. Oyston has only been joined as a party to enforcement action relating to Claughton Hall. But the position is a fluid one. Clearly, I can make no findings – one way or the other – regarding Mrs. Oyston's interest. However, it does seem to me appropriate and necessary, for the purpose of assessing the proper scope and extent of the Freezing Order, to assume (for present purposes) that one half of the frozen assets can be claimed by Mrs. Oyston and the other half only be claimable by the Petitioner from Mr. Oyston.

34. For these reasons, I consider that the need for the Freezing Order persists, and the Freezing Order should not be discharged.
35. I turn to the Respondents' contention that the Freezing Order should be varied in the three respects suggested in paragraph 21(3) above:

(1) Bring the order into line with the standard form. Mr. Collings, Q.C. did not press this contention very hard, and he was right not to do so. Obviously, standard forms are extremely helpful, and should, where appropriate, be used. The Freezing Order arose out of the special circumstances that I have described, and the order was drawn by counsel and approved by me. The fact that it is not in standard form is not a reason for varying it now.

(2) Incorporate a cross-undertaking in damages. As to this:

(a) Mr. Collings, Q.C. accepted that this is a matter for the discretion of the court, that discretion (obviously) to be exercised judicially. As Gee notes,^[2] "[w]hether to require an undertaking, from whom, and in what terms is a question of discretion which depends on the facts of the individual case and considerations of fairness".

(b) In this case, I am concerned with the question of whether the Petitioner should provide a cross-undertaking to the Respondents and the Oyston Group.

(c) I should say that I do not intend to treat the Oyston Group as a "third party" for these purposes, even if technically speaking that is what they are. For the reasons given in my Judgment (in particular in Section E) it is clear that the companies in the Oyston Group are controlled in all essential respects by the Second Respondent and (which is more important) that that control is exercised inconsistently with the duties that the directors owe to the individual companies comprising the Oyston Group.

(d) In circumstances where the payment of the judgment debt to the Petitioner is an obligation on the Respondents that they have not complied with, and appear to be making no effort to comply with, where the Respondents have asserted the existence of assets sufficient to discharge that debt, the fact the Freezing Order exists and continues is a matter of the Respondents' own conduct. Any difficulties occasioned by the Freezing Order – and I accept that these will exist – are for the Respondents' own account.

(e) What is more, the Respondents have – as I have described in paragraph 13(3) above – received a significant benefit from the Freezing Order regime, in the shape of the relatively free use of the funds described in paragraph 13(3). Before considering any kind of undertaking, I would require clear evidence (which, to be clear, I have not seen) as to why any difficulties in the Freezing Order regime are not resolved (i) by these funds and (ii) by the fact that the Petitioner's solicitors have been responsive in agreeing to appropriate dealings when the Respondents have approached them in this regard.

(3) Remove the Oyston Group from the ambit of the Freezing Order. It was suggested by Mr. Collings, Q.C. that the Freezing Order improperly extended to third parties – that is, it enjoined those companies in the Oyston Group who were not party to the proceedings. The only corporation, it was contended, that could properly be the subject of the Freezing Order was the First Defendant. This, so contended Mr. Collings, Q.C., was an entirely illegitimate and unjustified piercing of the corporate veil. Mr. Collings, Q.C.'s submissions on this point were entirely misconceived. The relevant paragraphs of the Freezing Order – set out in paragraph 5 above – track closely the provisions of the freezing order in Lakatamia Shipping Co. Ltd v. Su [2014] EWCA Civ 636. As is explained by the Court of Appeal in that case, the subject of the Freezing Order is not corporations not party to the proceedings, but the shares held by the Respondents in those corporations. It is the Respondents who are enjoined from using their controlling interests in the Oyston Group companies to cause the value of their shares to be diminished. That is the effect of the Freezing Order, and the corporate veil remains unpierced.

36. For these reasons, the application to vary or discharge the Freezing Order is dismissed.

Note 1   See Detect Sea Enterprises Ltd v O’Connor [1997] All ER (D) 13; Speedier Logistics v. Aardvark Digital [2012] EWHC 2776 (Comm).    [Back]

Note 2   Gee, Commercial Injunctions 6th ed. (2016) at [11-022].    [Back]