[2025] EWHC 2501 (Ch)

Fecha: 03-Sep-2025

Significance of and use to which the Statement was put/motive

Significance of and use to which the Statement was put/motive

40.

I will deal with these remaining points, which Butcher J, in Olympic Council of Asia puts under the heading of “strong prima facie case of contempt” (see paragraph 26(a) above) together, because it seems to me that they are inextricably linked.

41.

Mr Watson says that Mr Ginda deliberately misled Sanman as to the amount of money that TGDM had received from Cortland, because Mr Ginda wanted to avoid Sanman obtaining or at least seeking to obtain a higher financial limit on the Freezing Order than Sanman was already seeking at the hearing on 18 October 2024. So far as the payments to Samuel & Co and Skybridge (amongst others) which were paid before 18 October 2024, are concerned, Mr Watson says that Sanman would not have agreed to these being paid, as legitimate expenses of the Residential Development out of the monies frozen, by the Freezing Order. By hiding the VAT payment of £2 million TGDM was able to make the payments to Samuel & Co and Skybridge, which Sanman would never have agreed to and still allow the VAT payment to be made out of the £10.8 million frozen. This is because the VAT was clearly a legitimate expense of the Residential Development, which Sanman would not have been able to object to TGDM paying, even if it brought the value of TGDM’s assets below £10.8 million. This is, on Mr Watson’s case, the use to which the false statements (or at least the first one) were put, their significance to the Freezing Order proceedings and Mr Ginda’s motive for making the false statement.

42.

Mr Robins position, as I already mentioned, is that:

(a)

TGDM made the payments to Samuel & Co and Skybridge before the hearing on 18 October 2024 (when the freezing order limit was increased from £8 million to £10.8 million). Those payments were made within the then £8 million financial limit of the undertaking, so Mr Ginda cannot have misrepresented the payment which TGDM received from Cortland, in order to be able to make those payments; and

(b)

the VAT payment did not represent profit made from the Residential Development, but came with a liability to account to HMRC for that same sum. Even if Sanman had known about the VAT payment, before 18 October 2024, it would not have led to the limit on the Freezing Order being increased beyond £10.8 million, because that limit was based on 50% of the likely profit from the Residential Development and the Hotel Development, not the cash received by TGDM from Cortland.

43.

Unlike the need to consider whether Sanman has a strong prima facie case, to show that the impugned statements were false and deliberately so (which in my judgement must be proved, for permission be given at all) the strength of the evidence dealing with the significance of the allegedfalse statements, the use to which they were put and the motive for making them are all factors to be taken into account in deciding whether or not to grant permission, rather than hard tests that must be met, if permission is to be given at all.

44.

I do not consider there is strong evidence to support the conclusion that Mr Ginda (on the assumption that the statements were false) stated that the final payment was £10,289,910, in order to facilitate the payments to Samuel & Co (£250,000) and Skybridge (£450,000) and/or to avoid Sanman seeking a higher financial limit for the Freezing Order:

(a)

TGDM made the payments to Samuel & Co (£250,000) and Skybridge (£540,000), shortly before, rather than after the Freezing Order was made on 18 October 2024 (which increased the financial limit from £8 million to £10.8 million). Any more significant increase in the financial limit of the Freezing Order, imposed on 18 October 2024 would not therefore have prevented these payments being made (although not having a higher financial limit on the Freezing Order may have helped to hide the fact that they had been made);

(b)

as to whether disclosing that TGDM had in fact received £12,347,892, including VAT, from Cortland would have given Sanman a real opportunity to seek a higher limit on the Freezing Order than £10.8 million (a point which I have already touched upon, but which I now deal with in more detail) the position is not straightforward:

(i)

the financial limit placed on the Freezing Order was calculated by reference to the evidence that Sanman produced as to the profit that might expect to be made by TGDM from the Residential Development and by D4 from the Hotel Development, plus costs;

(ii)

in support of Sanman’s application to increase the financial limit from £8m to £10.9m, Mr Heer said, in his affidavit of 10 October 2024, that:

- the profit for the Residential Development should be placed at around £10.8 million, because this was what Deloitte (acting for TGDM) in a letter dated 22 July 2024, written by them to Jones Day (acting for Cortland) had suggested that TGDM were seeking as the Final Payment;

- profit for the Hotel Development should be placed at £5m; and

- an allowance of £500,000 should be made for costs; and

(iii)

Mr Robins is right that the VAT element of the payment made by Cortland to TGDM would not increase the profit made by TGDM on the Residential Development (because TGDM would have to account to HMRC for that VAT). Mr Watson said however that Mr Heer had acted conservatively in suggesting the likely profit on the Hotel Development at £10 million (of which Sanman’s share would be £5 million). He did so because Deloitte’s letter to Jones Day suggested that the final payment would be no more than £10.8 million. There was no point therefore in Mr Heer seeking to persuade me, on 18 October 2024, that the profit on the Hotel Development was likely to be more than £10 million, because increasing the financial limit on the Freezing Order would (if no more than £10.8 million was received) not freeze any larger sum. If however Mr Heer had understood that another £2 million would be received by TGDM, then he would have sought to persuade me, on 10 October 2024, that a higher profit than £10 million should be attributed to the Hotel Development and therefore that the financial limit on the freezing order should be higher than £10.9 million; and

(c)

whilst I can see that there was a potential motive for Mr Ginda to provide a figure to Sanman which was £2m lower than TGDM actually received (whilst misrepresenting to Sanman that that was all that it had received): (i) given that the payments to Samuel & Co and Skybridge were made before the limit on the freezing order was increased, on 18 October 2024 and therefore could not have been prevented by any increase in the financial limit; and (ii) that the link that Mr Watson suggests there is between the cash held by TGDM and the financial limit on the Freezing Order is not a direct one, (and even if Sanman had sought a higher limit on the Freezing Order I may not have endorsed it) I am not satisfied that Sanman has shown a strong prima facie case that the alleged false statement was: significant to the Freezing Order proceedings (in that a higher financial limit might have been sought and potentially obtained if Mr Ginda had disclosed that the total sum received from Cortland was £12,347,892) or that the alleged false statement was made by Mr Ginda to try to avoid Sanman seeking a higher financial limit on the Freezing Order than £10.9 million.

45.

Given my conclusions in paragraph 44(c) the factors relating to: (a) significance to the proceedings; (b) the use to which the alleged false statements were put; and (c) Mr Ginda’s motive for making the alleged false statements, do not materially support granting permission for Sanman to proceed with grounds 1 and 5.