KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Judge of the High Court)
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BPE SOLICITORS LIMITED |
Claimant |
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- and - |
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RAJ KUMAR RAM (AKA RAJ RAM KALER, RAJ RAM AND RAJ KALER) |
Defendant |
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Mark Warwick KC (instructed by Gunnercooke LLP) for the Defendant
Hearing dates: 11 and 14 March 2025
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Crown Copyright ©
HIS HONOUR JUDGE AUERBACH:
"The defendant to lodge and serve (a) medical evidence from one or more suitable medical specialists setting out the current nature of his ill-health treatment (including the need for and planned date of surgical intervention) and prognosis and any effect which those matters are said to have on his ability to give instructions to his legal team in advance of and subsequent to the return date including with any necessary adjustment and the respects in which it is considered that any such adjustment would assist and (b) an affidavit or affirmation confirming the nature, current status and likely timescale for completion of each application which has been made by him or on his behalf to HM Land Registry in connection with each of the properties as at the date of his affidavit or affirmation."
"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."
"There must be a real risk, judged objectively, that a future judgment would not be met because of unjustifiable dissipation of assets. But it is not every risk of a judgment being unsatisfied that can justify freezing order relief. Solid evidence will be required to support a conclusion that relief is justified, although precisely what this entails in any given case will necessarily vary according to the individual circumstances."
"(4) It is not enough to establish a sufficient risk of dissipation merely to establish a good arguable case that the defendant has been guilty of dishonesty; it is necessary to scrutinise the evidence to see whether the dishonesty in question points to the conclusion that assets are likely to be dissipated. It is also necessary to take account of whether there appear at the interlocutory stage to be properly arguable answers to the allegations of dishonesty.
(5) The respondent's former use of offshore structures is relevant but does not itself equate to a risk of dissipation. Businesses and individuals often use offshore structures as part of the normal and legitimate way in which they deal with their assets. Such legitimate reasons may properly include tax planning, privacy and the use of limited liability structures.
(6) What must be threatened is unjustified dissipation. The purpose of a freezing order is not to provide the claimant with security; it is to restrain a defendant from evading justice by disposing of, or concealing, assets otherwise than in the normal course of business in a way which will have the effect of making it judgment proof. A freezing order is not intended to stop a corporate defendant from dealing with its assets in the normal course of its business. Similarly, it is not intended to constrain an individual defendant from conducting his personal affairs in the way he has always conducted them, providing of course that such conduct is legitimate. If the defendant is not threatening to change the existing way of handling their assets, it will not be sufficient to show that such continued conduct would prejudice the claimant's ability to enforce a judgment. That would be contrary to the purpose of the freezing order jurisdiction because it would require defendants to change their legitimate behaviour in order to provide preferential security for the claim which the claimant would not otherwise enjoy."
"In my view, in the light of the authorities which I consider in detail below, the correct approach in law should be formulated in the following two propositions:
(1) Where the court accepts that there is a good arguable case that a respondent engaged in wrongdoing against the applicant relevant to the issue of dissipation, that holding will point powerfully in favour of a risk of dissipation.
(2) In such circumstances, it may not be necessary to adduce any significant further evidence in support of a real risk of dissipation; but each case will depend upon its own particular facts and evidence."
"Nor can I see any logic in seeking to control the grant of freezing orders through a heightened merits test as a gateway. Rather, the invasive nature of the relief should be taken into account in considering the other aspects of the test which are required to be fulfilled; in the safeguards built in to the wording of the orders in the form of exceptions; and in the application of the cross-undertaking in damages. I understand the concern that freezing orders should not be granted too readily, and fully endorse the proposition that care should be taken to ensure that they do not operate unfairly. It is always necessary to give anxious scrutiny not only to the second limb of the test, real risk of dissipation, but also to the third, whether it is just and convenient to make the order. Although this has been expressed as the third limb of the test, it is ultimately the whole test expressed in s. 37 Senior Courts Act 1981, and should be considered in every case, having regard among other things to the effect of granting, or not granting, the order."
"Please also confirm that you will actively take steps to preserve any assets in your name, including the various properties and businesses that you own. As to the three properties that we know are in your name, we enclose three standard form RX1s for you and/or your solicitor to sign and complete which will put this firm on notice of any dealings you may have with them. Registration of those notices will be entirely without prejudice to your position in response to the claim. If you do not agree please fully explain why. In the absence of any agreement or confirmation in that regard we anticipate receiving further instructions to file an urgent application for an injunction and/or order preventing the disposal of your assets."
"Further to our telephone conversations today on 12 February 2025, I have now received from Reynolds Porter Chamberlain LLP the letter sent to you on 4 February 2025 and proposed particulars of claim on behalf of BPE Solicitors LLP.
The contents of the letter provide allegations of fraudulent representations relating to the sale of Cobb House, 20-22 Hillside Avenue, Strood, Rochester, Kent, ME2 3DB. The letter is also requesting restrictions be placed over Kaler Mews, 6 Goldsworth Drive and 145 Gordon Road. These restrictions would prevent the registration of any transfer and the indication from the letter is that in transferring the properties it would be deemed a fraudulent reduction in assets.
Albeit that these are only allegations and you have instructed that these transfers should have taken place many years ago due to your health circumstances at the time, professionally I cannot, at this stage, accept your instructions to transfer your properties. I may be able to help you in the future once the claim has concluded.
Having completed the transfer on 1 Kaler Mews I am currently holding a balance of £20 for 145 Gordon Road and 6 Goldsworth Drive. I currently have outstanding Land Registry fees of £33.60. I intend to use the £20 from 1 Kaler Mews to reduce that fee to £13.60. On that basis I have time costed the work I have undertaken and I enclose my bill of costs and aborted statement of fees for 6 Goldsworth Drive and 145 Gordon Road."