BL-2024-000734 - [2025] EWHC 2166 (Ch)

The Claimants (collectively, “Glint”) have developed and promote an app which permits use of a credit card linked to the gold price. Like many businesses of its kind, they are in “startup mode” – that is, they are mostly lossmaking, receiving new injections of capital from time to time, and their assets consisted primarily of the IT which they have developed to operate their business. At the relevant time they were neither balance-sheet insolvent nor failing to pay their debts as they fell due, although the auditors report for the 2018 consolidated accounts contained, as might be expected for a company in this position, a going concern qualification. The founder and guiding mind of Glint was Mr Jason Cozens.

David Fergusson is the Co-founder of Global Precious Metals, a Singapore based company, and is the main shareholder in Nimoi, a venture capital investment firm. Nimoi appears to have established another company, Niven Alpha Pte Limited (“Niven”), for the purpose of trying to acquire Glint. Niven approached the board of Glint in May 2019 with an offer to purchase 51% of the shares, which the board rejected.

Niven’s next step was to purchase a substantial secured loan to Glint from an existing lender, Brahma Finance (BVI) Limited (“Brahma”). The Claimants say – almost certainly correctly – that Niven acquired the loan as a platform for a hostile takeover of Glint.

The benefit of the loan and the security package was transferred to Niven by a Deed of Assignment dated 3 July 2019 (“the Deed of Assignment”) of the rights of Brahma under a £1.65 million secured term loan facility (“the Facility Agreement”) and a guarantee and debenture on 22 January 2019 (“the Guarantee and Debenture”). The Guarantee and Debenture contained provisions which required the chargor to provide on request certain information as to its assets to the chargee (paragraph 1.11.1 of Schedule 3 to the Guarantee and Debenture) and to notify the chargee of claims or potential claims against the Secured Assets (paragraph 1.11.3 of Schedule 3 to the Guarantee and Debenture). For brevity, I refer to these paragraphs as “1.11.1” and “1.11.3” hereafter, and to these obligations together as the “Information Obligations”. Breach of any of the Information Obligations would constitute an Event of Default under the Facility Agreement. The occurrence of such an Event of Default entitled the lender to accelerate the loan and demand immediate repayment of the amount due.

On 15 July 2019 Niven made a request under Paragraph 1.11.1. for certain items of information. It is common ground between the parties that no information was ever provided in response to this request.

On 30 August 2019, CMS, solicitors for Niven, wrote to Glint alleging that this failure was a breach of Paragraph 1.11.1. and also alleging a breach of 1.11.3 (the obligation to proactively notify the chargee of potential or actual claims).

Also on 30 August 2019, David and Alex Fergusson gave a presentation by webinar to some Glint shareholders, in an unsuccessful attempt to get support for Niven’s attempted takeover.

On 4 September 2019, solicitors acting for Glint wrote to CMS, stating, inter alia, that:

“Instead of adopting the proper meaning and purpose of the terms of the Finance Documents to protect your client’s interest in the Loan and the Secured Liabilities, your client appears to be abusing the terms of the Finance Documents for a collateral purpose which is contrary to the intentions of the parties at the time of entering the Finance Documents. Your client’s actions appear to be in bad faith, with a view to disrupting our client’s day to day management of its business and attempting to place it under onerous commercial pressure.”

On 6 September 2019, CMS wrote a further letter alleging a further breach of clause 10 of the Facility Agreement (alleged failure to give notice of a board meeting) and purporting to accelerate the loan and demand payment of all amounts outstanding.

Glint did not make payment. Such a failure to pay was a further Event of Default entitling the chargor to appoint the Defendants as administrators.

The Defendants were appointed on 18 September 2019 using the out-of-court appointment procedure pursuant to paragraph 14 of Schedule B1 Insolvency Act 1986. It is accepted that such an appointment would be ineffective if the charge concerned did not purport to empower the chargee to appoint an administrator (Sch B1 14(2)(c)).

It seems that the Defendants then entered into negotiation with Niven, presumably on the basis that Niven would acquire the business. However, Mr Cozens was in the process of raising further investment funds, and on 4 October 2019 he communicated to the Administrators that he was in a position to provide sufficient funds to pay Niven in full. These funds were transmitted on the 7th October, and a deed of release executed by Niven on the 10th October.

The speed of this process meant that there was no opportunity for the administrators’ fees to be settled. The remaining parties entered into a deed of settlement (the “Waterfall Agreement”) on 19 October, whose effect was that the Defendants would immediately leave office as administrators by filing notices under Para 80(2) of Schedule B1, would apply for discharge from liability as from the date that they left office pursuant to paragraph 98(2)(c) of Schedule B1, and would apply to the court for the determination and approval of their remuneration and expenses incurred during the administrations of each of the Companies pursuant to Rule 18.23 of the Insolvency (England and Wales) Rules 2016. The Waterfall Agreement recited that the Defendants were appointed as administrators of the Claimants, and provided for the Claimants to provide letters to be submitted to the court confirming that they did not object to the level of the Administrators’ fees, and that those fees should be calculated on a time cost basis.