BL-2021-002235 - [2025] EWHC 2367 (Ch)

After I had reserved my judgment, however, but before I could hand it down, the respondent issued a yet further application, on 9 September 2025. This application asked the court to make the following order:

“Order under CPR 3.1(2)(f) staying sentencing in these contempt proceedings pending determination, or further order, of the Part 7 claim filed by me challenging the 5 April 2022 Declaration; alternatively, a stay until first case management directions in that claim. I ask that this application be determined on the papers before any sentencing order is sealed.”

The application is supported by a further witness statement from the respondent, also dated 9 September 2025. This merely sets out a small part of the procedural history of the matter. But it misunderstands – or at any rate misstates – some of what I said at the hearing on 5 September. It also repeats arguments in favour of a stay of the sentencing decision which I rejected at that hearing. But it also says this:

“For the avoidance of doubt, during any stay I will pursue the fraud allegation solely through the Part 7 claim and the Court process and will refrain from any external communications or actions inconsistent with the 5 April 2022 Declaration while it remains in force.”

The respondent did indeed issue a Part 7 claim form (in the Business List of the Business and Property Courts of England and Wales) on 9 September 2025. The defendants are not only the applicant in the contempt application, but also its solicitors, Proskauer Rose (London) LLP, one of its officers, Mr Lyndon Lea, and Ernst & Young LLP. This claim form gives brief details of the claim as follows:

“Claim to set aside the declaration dated 5 April 2022 made in Claim No BL-2021-002235 (‘the 2022 declaration’) on the single ground of fraud on the court in its procurement, and on the further ground that the DS Family Trust, as legal owner of one AllSaints Retail Ltd share and a necessary party under CPR 19.2(3), was excluded from those proceedings. The claim does not seek to relitigate the 2011 Share Purchase Agreement or 2012 Settlement, which are background only. The relief sought is a declaration that the declaration dated 5 April 2022 is void for fraud, together with appropriate consequential directions and costs.”

The claim form states that the particulars of claim are “to follow”. It is accompanied by a witness statement from the respondent, although the CPR make no provision (and certainly impose no need) for the service of such a document in a Part 7 claim.

It is clear, first of all, that the respondent has been made aware of at least some of what I said in giving judgment extempore in dismissing his application of 13 August 2025. This is despite the fact that my judgment has not yet been transcribed and published. There were three gentlemen sitting together at the back of the court throughout the whole of the hearing on 5 September 2025 (unlike the casual tourists and other court visitors who came in for a short time and then left). They were asked if any of them was the respondent but said No. As set out above in summary, during my extempore judgment I said that it was not possible to apply to the court to set aside an order for fraud by simple application in form N244 in the same proceedings. Instead, it could only be done by fresh action. As stated above, the respondent has now issued that fresh claim.