[2025] EWHC 2830 (Ch)

After all parties had made their closing submission, Ms Chaffin-Laird addressed me in relation to a document which Mr Flanagan had handed to her and which she considered, as Counsel owing duties to the court, she was obliged to bring to my attention. This was a copy of an email dated 30 June 2022 from Mr Robbie Constance of DWF solicitors addressed to Ms Clare Thomas of the FCA. The contents of the email refer to ‘the firm’s regulatory report of 31 May 2022 and states as follows, ‘Return of Members’ Funds to Hartley was completed on 5 April 2022’. Ms Chaffin-Laird made no actual submissions. It is of course extremely unsatisfactory for such a document to appear after all parties had made their closing submissions and after the evidence has effectively closed.

There was no explanation as to why this email had not formed part of the evidence. Ms Chaffin-Laird had been instructed shortly before the trial and what is set out herein is not a criticism of her as Counsel. I directed short submission from the other parties and in particular whether the trial should be re opened. Ms King submitted further closing submissions which also included the email placed into its context alongside other emails. None of the string of emails produced by Ms King were put in evidence by Mr Flanagan.

The email itself was written by DWF, solicitors, acting then on behalf of HPL. DWF currently act for both the Joint Administrators of HPL and on behalf of the Joint Administrators of Cyan and Wilton UK. At the time that the email in June 2022 was written, Mr Flanagan was a director of HPL and was copied into the email. The email predates the entry into administration of HPL which occurred on 29 July 2022. The string of emails produced by Ms King included one from the FCA seeking further evidence relating to the repayment of sums to members accounts. That email is dated the same date as the one produced by Mr Flanagan but is timed later on the same day.

In my judgment, the production the email does not require the trial to be reopened. Even though it was written by DWF, solicitors acting then on behalf of HPL and who continue now to act for the Joint Administrators of HPL, it relates to a period prior to HPL being placed into administration. Mr Kubik as Joint Administrator has raised issues relating to whether payment has been made and he has also questioned the payment of £13 million. Mr Flanagan produces no explanation whatsoever as to why, having had ample opportunity to exhibit this document, he elected not to do so. He produced his fifth witness statement in answer to Mr Kubik’s first witness statement which made the points I have detailed above relating to challenging the payments made to HPL. He elected not to rely upon or attach the email which he has now passed onto Ms Chaffin-Laird. As demonstrated by the string of emails submitted by Ms King, it is one email in a string of emails with an email of later the same day questioning the sums said to have been returned. Accordingly, I will not allow the email to be relied upon in these proceedings relating to the preliminary issue. It is in any even not relevant to the issue as to whether the GM Companies have established that they have the economic interest in the Funds.