CL-2017-000323 - [2025] EWHC 2876 (Comm)

APPLICATION

The effect of Mr Thomas having made his cross-application, being a “Relevant Claim” within the DDO, was to trigger the orders and directions set out in § 5 of that order. Mr Thomas was therefore required to serve any evidence responding to Zoubir 19, addressing any involvement of Dr Smith or Mr McNally (or persons Mr Thomas knows to be associated with them) in the cross-application, and identifying any source of funding used to fund the cross-application or opposition to Harbour’s Debarring/Stay Application. The cross-application is, in the meantime, automatically stayed pending the hearing and determination of the Debarring/Stay Application.

Although Harbour referred to the requirements placed on Mr Thomas by the DDO as a ‘threshold’ condition, the order does not provide that any Relevant Claim must inevitably remain permanently stayed unless Mr Thomas provides evidence addressing those matters in a manner which the court finds to be adequate. Such an approach would be inconsistent with the multi-factorial approach set out in the case law summarised above, and would unduly fetter the court’s discretion. However, the adequacy of Mr Thomas’s evidence is a highly relevant consideration when considering Harbour’s Debarring/Stay Application and its fallback application for security for costs.

Paragraph 5d of the DDO provided that any evidence filed by Mr Thomas must address any involvement on the part of Dr Smith or Mr McNally, or persons Mr Thomas knows to be associated with them, in the Relevant Claim i.e. Mr Thomas’s cross-application. The evidence Mr Thomas has filed pursuant to § 5 of the DDO does not satisfactorily deal with this matter.

Zoubir 19, to which Thomas J was to respond, had identified three areas in which Dr Smith appeared to have been involved in Mr Thomas’ litigation activities, over and above those recorded in court judgments or rulings. Those three areas were (i) Mr Thomas’s application for permission to appeal from Foxton J’s judgment dated 30 November 2022 in the Part 8 Claim, including communications with the Court of Appeal on Mr Thomas’ behalf; (ii) reference by Mr Thomas within one of his letters and the Assignment Application to one of the Enforcement Receivers’ restricted reports, which had been sent to SFO lawyers, the Administrative Court, and Dr Smith, but not Mr Thomas (leading to possible inferences that it had been leaked by Dr Smith or that Dr Smith was the author of the letter and Assignment Application); and (iii) the nature and style of Mr Thomas’s letter withdrawing the Assignment Application.

Thomas 6 addressed the involvement of Smith, McNally et al. in the following cursory terms:-

“Involvement of Dr Smith and Mr Simon McNally in the Harbour Application or the Thomas Cross-Application

15.

I can confirm that neither Dr Smith nor Mr Simon McNally (nor persons I know to be associated with them) have had any involvement in the preparation of my response to the Harbour Application or the Thomas Cross-Application, save for providing ad hoc assistance to me with the provision of relevant background documents and information. In addition, and without waiving privilege, my solicitor has discussed these applications with the legal adviser to Mr Simon McNally, about some relevant aspects of the complicated legal and factual background to the Directed Trial, of which he has a detailed historic knowledge.”

No documents were exhibited on this topic.

Zoubir 21, in reply, pointed out that Thomas 6 was extremely vague, and did not address the points made in Zoubir 19. The parties agreed that Mr Thomas would be permitted to supplement Thomas 6, leading to the service of Thomas 7. The following passages are of particular note:-

“19.

My evidence at paragraphs 15 – 17 of Thomas 6 sets out all the information legitimately required to be addressed by paragraph 5(d) of the Debarring Directions Order about any involvement of Dr Smith and his associates in the Thomas Cross-Application (and the Harbour Application); and my funding of those, and provides supporting documentary evidence in the form of a letter from my litigation funder, LitFin, which was exhibited at NT5.

20.

Although I believe it is clear from the context, I take this opportunity to confirm expressly that Litfin is also funding my opposition to the Debarring/Stay Application where Mr Zoubir has attempted in Zoubir 21 to suggest that this has not adequately been addressed (paragraph 113). In relation to this (and responding to paragraph 113) I would like to explain the following. At the time of preparing Thomas 6, no costs had been expended on opposing the Debarring/Stay Application (as distinct from complying with the Debarring Directions Order) and therefore at that time no funding had “been used to fund…the opposition to the Debarring/Stay Application” (to use the words of paragraph 5(d) of the Debarring Directions Order). Indeed, as I have outlined at paragraph 6 above, shortly after service of Thomas 6, my solicitors, Marriott Harrison, wrote to Harcus Parker pointing out that there was no basis to pursue the Debarring/Stay Application and asking Harcus Parker to confirm that the application would not be pursued. It was only after receipt of Harcus Parker’s responsive letter dated 18 December 2024 stating that Harbour still intended to pursue the Debarring/Stay Application that any costs started to be incurred in respect of the opposition to the Debarring/Stay Application. I can confirm that such costs have indeed been funded by LitFin since then, i.e. since 18 December 2024. For the reasons explained, there was no non-compliance with the terms of the Debarring Directions Order as alleged in paragraph 113 of Zoubir 21.

21.

I also explained in those passages of Thomas 6 the substantial commercial interest I have in the Thomas Cross-Application (and my defence of the Harbour Application); and that the only involvement of the parties referred to in paragraph 5(c) of the Debarring Directions Order has been in the form of ad hoc assistance to me.

22.

Zoubir 21 does not dispute my personal interest in the Thomas Cross-Application or in defending the Harbour Application; or that these are being funded independently (paragraph 95 of Zoubir 21 positively accepts this). Nor does Harbour explain what interest it believes Dr Smith or his associates have in these applications. In fact, paragraph 111.7 of Zoubir 21 demands that I explain what arrangements I have made with them about sharing “the recoveries” (it is not clear whether this relates to the Thomas Cross-Application or more broadly, and Mr Zoubir does not explain it further). In other words, Harbour is unable itself to identify any benefit that Dr Smith and his associates have in the Thomas Cross Application. In any event, it was clear from Thomas 6, but I repeat and categorically confirm, that none of them has any control whatsoever over the Thomas Cross-Application, or of my defence to the Harbour Application and I have not entered into any “arrangements” with any of them about sharing “the recoveries”.

23.

Further, it makes no sense for me to work to undermine the outcome of the Directed Trial. The Consequentials Order provides at paragraph 4 that all of the assets referred to therein are subject to the Harbour Trust and are to be apportioned between the beneficiaries of the Harbour Trust in accordance with its terms. This is an order in my favour as a beneficiary of the Harbour Trust – a position which no party disputes – and it is therefore wholly in my interests to seek to ensure that all the designated assets pursuant to paragraph 4 of the Consequentials Order are ultimately transferred to the Harbour Trust so that I can benefit from them upon distribution. The Thomas Cross-Application does not work against this objective; rather, the purpose of the Thomas Cross-Application is to have the relevant parts of the Harbour IA declared unenforceable in line with the PACCAR Decision such that the distributions to me under the terms of the Harbour Trust are proportionately increased.”

and:-

“38.

In paragraph 116, Harbour seeks further intrusive information, this time covered (I understand) by privilege. This will be addressed fully by my legal representatives in the course of submissions. Moreover and in any event, the information sought has no relevance to the Debarring Issue, given that I have now discharged all my costs liabilities to Harbour. In particular:

…

(4)

In paragraph 116.5 Harbour demand to know whether Dr Smith or Mr McNally or other so-called “Smith Parties” procured or paid for legal advice as to the effects of the PACCAR judgment and the prospects of the Thomas Cross-Application. Again, this is irrelevant to the Debarring Issue, but, without waiving privilege, I can confirm categorically that they did not.

(5)

Paragraph 116.6 – Harbour demands to know what incentive Dr Smith and Mr McNally have to assist me. The next sentence refers to “any such incentives or arrangements agreed between Mr Thomas, Dr Smith and Mr McNally” which seems to form an allegation that there is some sort of “back-hander” or other financial arrangement between us. At paragraph 111.7 Harbour asserts that “some agreement must exist between [Dr Smith and me] or between Mr Thomas and Dr Smith’s associates by which any recoveries made by Mr Thomas are to be shared with him or them…”. This is more baseless and self-serving speculation:

(i)

I confirm categorically that there is no such financial arrangement or incentive agreement of any kind between us. They have chosen to provide assistance to me at my request because I assume that they consider it to be in their interests to do so, but I am not involved in their decision-making in this regard. I am certainly not involved in any agreements or arrangements to “thwart the Directed Trial Judgment or related decisions or the asset-realisation activities of court appointed asset holders” as referred to at paragraph 116.6. I address this further below.

(ii)

As I have already stated, as a matter of commercial logic, it is very much in my interests to pursue the Thomas Cross-Application because if the relevant parts of the Harbour IA are unenforceable this will lead to additional entitlements for me, as a beneficiary of the Harbour Trust, to the assets of the Harbour Trust.”

In the course of preparing reply evidence, Harbour found that Dr Smith’s metadata featured in Thomas 6 and Thomas 7 themselves, with Dr Smith described as their “author”. Asked about this, Mr Thomas’s then solicitors, Marriott Harrison, said that at some point prior to the service of Thomas 6, Mr Thomas met with Dr Smith, and that after that meeting, Dr Smith sent a Microsoft Word document by email to Mr Thomas; that Mr Thomas then forwarded the Word document to Marriott Harrison without explaining that it had come from Dr Smith; that Marriott Harrison used the Word document “for convenience” “as a template” to draft Thomas 6 and Thomas 7; and that “the original content of the document was entirely overwritten during this process and none of the original content survived”. Attempts by Harbour to get further details were met by reliance on legal professional privilege.

Mr Thomas adhered to this version of events in Thomas 8, where he said:-

“24.

However, without waiving privilege, and in the spirit of providing assurances to the Court given Harbour’s dogged pursuit of this issue, I confirm that following the Directed Trial, I contacted both Harbour and the Enforcement Receivers to obtain factual information from them about Dr Smith’s companies and the various assets the Enforcement Receivers were seeking enforcement over. Harbour and the Enforcement Receivers refused to provide this information. In fact they refused to engage with me or meet with me at all, instead choosing to shut me out of discussions entirely in the manner that is recorded in the transcript of the 11 June 2021 Consequentials hearing, where Foxton J seems to agree with my counsel’s (Mr Crossley) submission that “It seems to me a pity that the enforcement receivers would choose to shut [Mr Thomas] out … We believe that [Mr Thomas] can actively assist, and I think that it is unfortunate that as owners of these assets, ultimately, they should be denied some level of input and consultation in relation to them.”

25.

Given Harbour’s and the Enforcement Receivers’ refusal to assist me, out of necessity, I contacted Dr Smith in or around August 2021 to obtain the factual information from him. Dr Smith provided the information I needed in various telephone conversations and a small number of in-person meetings. As the matter unfolded further, however, I became increasingly concerned by allegations that I was in some way connected with Dr Smith and his actions. At the point of the debarring application, I therefore made the decision that I would cut ties with Dr Smith altogether. Having been ordered by Foxton J to address any involvement of Dr Smith in any Relevant Claim though, I contacted Dr Smith to clarify the extent of his factual involvement so that I could accurately outline this to the Court. Dr Smith subsequently sent me a short note in a document summarising his involvement, which I passed on to my then solicitors, Marriott Harrison LLP. Without explanation, Marriot Harrison used that document as a template for my witness statements, although the short content which Dr Smith had provided was not used but entirely overwritten.

26.

Dr Smith had no role in drafting the content of my witness statements, provided no input or advice on what should go into them, and played no part in shaping the strategy for the application. His only involvement was as I have described, and I have had no interaction with him since.

27.

I believe this sole event to be entirely consistent with what Harbour dismisses as my “contentions in evidence as to Dr Smith’s limited involvement” in paragraph 10 of Zoubir 23. In any event, my witness statements are based on my and only my input and were drafted by my previous solicitors on the basis of my instructions. Moreover, even Harbour admits in paragraphs 11-13 of Zoubir 23 that Marriot Harrison have confirmed that the communication from Smith was “entirely overwritten” and that “none of the content survived” during its work on my statement. Despite this recognition, Harbour have put in yet another application seeking to control my involvement in the proceedings (the security for costs application) and another witness statement seeking to discredit me on exactly the same grounds.

28.

I cannot say whether or not Marriott Harrison’s use of document sent by Dr Smith as a template for my witness statements resulted in any of the metadata concerns that Harbour raises, but as I have previously confirmed, neither Dr Smith nor any of his associates have any control whatsoever over the Thomas Cross-Application, and I have not entered into any financial arrangements with any of them about sharing the recoveries.

29.

As I confirmed in Thomas 6, any assistance Dr Smith (or Mr McNally, for that matter) has provided to me in respect of these applications has been ad-hoc, voluntary and unpaid, based on I assume his own interests. In respect of Mr McNally, and again without waiving privilege, he has also assisted me by providing factual information and administrative support for preparing for and responding to the applications, but all statements, views and instructions in respect of these applications are mine and Mr McNally has no control over the applications either. The factual information Mr McNally has provided has been limited to the nature and location of assets, given his knowledge of the original Isle of Man Settlement.”

It is difficult to give much credence to this evidence in circumstances where (a) Thomas 6 and Thomas 7 did not explain that Dr Smith had provided Mr Thomas with a document in this way and (b) having referred to and relied on the alleged contents of the document received from Dr Smith (hence, in my view, clearly waiving any privilege that might previously have applied to it), Mr Thomas has conspicuously failed to produce it. Moreover, the statements in Thomas 8 that, apart from this ‘sole contact’, Mr Thomas cut ties with Dr Smith when the debarring application was made (March 2023) is difficult or impossible to reconcile with (i) the open letter to the Lord Chancellor dated 16 April 2024, written to oppose retrospective legislation then under consideration to reverse PACCAR, signed, amongst others by each of Mr Thomas, Dr Smith and Ms Halevy of Marriott Harrison; (ii) the reference to Mr Thomas’ proposed attack on the Directed Trial outcome, at a hearing in Dr Cochrane’s Jersey proceedings on 6 February 2024 (to which he is not a party); and (iii) Mr Thomas’ reference to those proceedings in his letter before action dated 11 July 2024 (bearing in mind Dr Cochrane’s ongoing connection with Dr Smith, including her having previously been found to be Dr Smith’s nominee). Mr Thomas’s suggestion that “any assistance” that Dr Smith has provided in respect of these applications has been ad hoc, voluntary and unpaid is also hard to square with evidence of substantial prior financing provided by Dr Smith to Mr Thomas (which presumably remains due for repayment to Dr Smith).

It is also hard to see why Mr Thomas would need to ask Dr Smith for details of his involvement in Mr Thomas’s cross-application: Mr Thomas would know himself. All these matters give rise to the strong suspicion that the reason for consulting Dr Smith was to ask for his instructions about what to say.

All in all, I do not consider Mr Thomas to have provided a satisfactory explanation of the involvement of Dr Smith et al. in his cross-application. This is concerning in circumstances where it is unclear precisely how Mr Thomas personally could benefit from the Harbour Investment Agreement being held to be void. Even if he did recover, Dr Smith may at least attempt to take the benefit. In the course of the recent contempt proceedings against him, Dr Smith said “I have always believed my entitlement flows from my efforts, from the Smith Fee Agreement”. That appears to be a reference to an agreement between Dr Smith and the Orb Claimants, under which he may prima facie be entitled to 50% of any process received by (among others) Mr Thomas, up to a maximum of £40.9 million, in return for Dr Smith’s assistance with their claims. It emerged during the Directed Trial litigation that Dr Smith and Mr McNally had lent significant sums to Mr Thomas. Mr Thomas in his evidence on the present application made no reference to the Smith Fee Agreement, and has denied that Dr Smith has any such entitlement. It is unclear how Dr Smith could properly benefit from any recoveries Mr Thomas might make, given the unsatisfied confiscation order against Dr Smith. Nonetheless, it appears he might well make the attempt.

Paragraph 5d of the DDO provided that any evidence filed by Mr Thomas must identify any source of funds which had been used to fund the Relevant Claim (here, Mr Thomas’s cross-application) or the opposition to the Debarring/Stay Application.

Thomas 6 stated:-

“Source of funding

16.

I confirm that the source of my funding for the Thomas Cross-Application (and, indeed, of defending the Harbour Application) is an independent commercial third party litigation funder, LitFin Justice s.r.o. (“LitFin”). I am aware as a result of having been informed by Tomáš Vít, a partner of LitFin, that LitFin is a company forming part of the LitFin group. The LitFin group specialises in funding damages actions, offers comprehensive litigation services and has committed over EUR 50 million in litigation funding. The LitFin group is one of the major European litigation funders and is ranked in Band 3 of the Chambers Guide to Europe-wide Litigation Funding: Litigation Funding, Europe-wide, Litigation Support | Chambers Rankings. Mr Vít has also informed me that neither LitFin nor the LitFin group has any connection to Dr Smith, Mr Simon McNally or persons known to be associated with them and neither LitFin nor the LitFin group has had any communication with such individuals. The position is confirmed in a letter from Mr Vít, which is exhibited at pages 7-8.

17.

I provide the information regarding LitFin’s identity to comply with paragraph 5d. of the Directions Debarring Order. However, in doing so I wish to register my concerns, in light of, amongst other things, Harbour’s very powerful position within the litigation funding market, that it may seek (directly or indirectly) to interfere with my relationship with LitFin to cut off my funding and, thereby, proceed with the Harbour Application on an unopposed basis. I wish to make clear that if Harbour misuses the information that I have provided regarding LitFin’s identity in any such way then I will apply to the Court for the appropriate relief. ”

LitFin is based in Czechia. Mr Thomas confirmed in Thomas 7 that it is also funding his opposition to the Debarring/Stay Application, and said no money had been spent on that application until 18 December 2024, since when LitFin had been funding the costs. In Thomas 8, he said:-

“36.

As I have previously advised, LitFin Justice s.r.o (previously known as LitFin dieseljustice s.r.o) is providing third party funding to me in respect of this litigation. The terms of that agreement remain confidential. LitFin Justice s.r.o is a member of the wider LitFin group: https://litfin.capital/legal-disclaimer/. LitFin is a trusted litigation funding firm with a proven track record. LitFin have informed me that they have a portfolio size of €3billion, with €55m having been invested into litigation funding, with an 89% success rate. I understand that they have over 10,000 clients across 7 jurisdictions.

37.

LitFin have provided me with some recent case examples, to demonstrate the type of cases they fund, including, but not limited to:-

…

38.

At paragraph 59 of Zoubir 22, Mr Zoubir suggests that LitFin Justice s.r.o ought to consider submitting to the jurisdiction of the English Court, and consider offering security for costs to Harbour. That is most peculiar given that LitFin is not a party to this litigation, as stated above, and is under no requirement, so far as I am aware, to submit to the English Court’s jurisdiction. Further, in so far as I understand a party’s entitlement to security for costs, I understand that the Court may make such an order (if certain conditions are satisfied) as against a party to the proceedings. As I have said, LitFin is not a party to the proceedings, and no security for costs is therefore offered. Neither of these points are relevant to the merits of the Debarring Application in my view though. I am, however, in the process of arranging After The Event insurance to address the concerns Harbour has raised and I expect to be able to provide confirmation that this cover is in place shortly.

39.

In so far as paragraph 60 of Zoubir 22 is concerned, I comment as follows:

39.1.

As far as I am aware, LitFin does not submit to the jurisdiction of the English Court for the reasons stated above.

39.2.

LitFin will not meet any adverse costs order, although as explained further in this letter, I believe all relevant adverse costs orders have been paid in full by me.

39.3.

As already noted, I am in the process of arranging ATE insurance.

39.4.

LitFin has confirmed to me that it is not a member of ALF but is a member of the Czech and Slovak Association which requires similar standards. Of course, LitFin’s internal compliance issues are a matter for them and I cannot comment further on this. They are also under no legal obligation to provide details of their capitalisation within the context of this litigation, and I consider it wholly inappropriate for Harbour to seek this internal intelligence from a competitor, which appears to be an attempt at exerting pressure on me. This is particularly the case given that I believe all adverse costs orders have been paid and ATE is presently being arranged.

39.5.

I am advised that LitFin are under no obligation to offer security for costs. It is not a party to the proceedings and ATE is presently being arranged.”

Harbour points out that, without seeing the full terms of the LitFin funding agreement, it is not possible to tell whether LitFin would be contractually obliged to fund security for costs if Mr Thomas were ordered to provide it.

The DDO did not refer to these in its substantive provisions, but recited that:-

“Mr Nicholas Thomas and Mr Roger Taylor (“Messrs Thomas & Taylor”) have failed to satisfy existing costs orders in these proceedings in favour of the Settlement Parties(namely the SFO, ERs, the Viscount, Stewarts, Harbour and the Joint Liquidators), in particular £335,000 (plus interest) which has been due since 2 December 2021 and £25,000 (plus interest) which has been due since 5 August 2022 (the “Outstanding Costs Orders”)”

and:-

“Messrs Thomas & Taylor will be liable for further costs to certain of the Settlement Parties and to the Trust Receivers pursuant to a ruling of Foxton J dated 24 March 2023 (“Further Costs Orders”)”

The existence of outstanding costs orders, whether those referred to in the DDO or others, is at least a potentially relevant consideration in the Debarring/Stay Application.

Harbour lists Mr Thomas’s costs liabilities (including some which have now been discharged) as follows:-

Items (ii), (iii), (iv) and (v) above were the outstanding costs orders referred to in the recitals to the DDO. It is common ground that (ii), (iii) and (iv) have been discharged, albeit only in July and October 2024 and therefore late. Mr Thomas claims to have satisfied item (v), the JL Costs, too, and he notes that Zoubir 20 stated that “[t]he final costs order was settled by Mr Thomas on 22 October 2024” (§ 19). There appeared to be some doubt about this, since Zoubir 23 suggested that this sum (£7,775.48) had not in fact been settled. Mr Thomas’s counsel informed me that Mr Thomas had arranged to pay it again (subject to the right to recover any double payment), albeit Harbour noted it was not owed to them but to the joint liquidators, and questioned the source of any such payment. In all the circumstances, including the small size of the relevant sum in the scheme of things, I do not think it necessary to consider this costs order further.

Mr Thomas in any event makes the point that none of the outstanding costs are due to Harbour. Harbour counters that the sums due to the Enforcement Receivers, i.e. items (vii) and (viii) reduce the assets available for distribution to all Settlement Parties and thus do affect Harbour. On that basis, I consider it proper to take them into account to some extent. However, they have little connection with the Harbour Enforceability Application or Mr Thomas’s cross-application. The Sodzawiczny Costs arise from proceedings outside this jurisdiction, relate to parties not involved in these proceedings and concern obligations owed by multiple parties, not Mr Thomas alone. The Contempt Costs arise from an application pursued by the Enforcement Receivers and relate to a settlement resolving a dispute between the Enforcement Receivers and Mr Thomas. I have already indicated how the Statutory Demand costs arose.

Harbour submits that the court should debar Mr Thomas from participating in the Enforceability Hearing (i) on the basis of his failure to discharge the burden imposed upon him as to the involvement of Dr Smith, Mr McNally et al. and (ii) on the basis of the unpaid costs orders. It submits that the order should be immediate, rather than on ‘unless’ terms, because Mr Thomas (a) has been the subject of multiple serious adverse findings by the English courts in connection with these matters; (b) has, by way of the DDO, had the same express opportunity and indeed obligation to respond to the underlying concerns as that afforded by an unless order; (c) has had multiple opportunities adequately to address those concerns, such that there is no reason to consider that a yet further opportunity is reasonable or proportionate, or likely to improve the position.

As a fallback, Harbour submits that the court could make an order allowing Mr Thomas to participate only on condition that he:

The Debarring/Stay Application seeks orders that:-

“That, save insofar as the Court may direct otherwise following a request for permission made in accordance with paragraph 2 below, unless within 14 days all outstanding costs awards against Messrs Thomas & Taylor in favour of the Settlement Parties are satisfied, Messrs Thomas & Taylor be debarred from bring (sic) any further applications or claims against any of the Settlement Parties or the Trust Receivers or the New Trustees in any way connected with the subject matter of the Directed Trial or the Part 8 Proceedings (“Relevant Actions”) until all such costs awards as may exist from time to time are satisfied;

That in any event, Messrs Thomas & Taylor shall not be permitted to bring any Relevant Actions without either (1) the prior consent of Harbour and Ord, or (2) the permission of the Court. Such request for permission from the Court is to be made on 14 days’ written notice to Harbour and Orb and will be conditional on the filing of evidence by Mr Thomas and/or Mr Taylor addressing in full the conditions set out in paragraph 4 of the Court’s direction of 28 February 2023.” (emphasis added)

It is accepted that Mr Thomas’s cross-application is a Relevant Action for the purposes the Debarring/Stay Application. The application did not seek an order debarring Mr Thomas from defending any application that Harbour might itself make, such as the Harbour Enforceability Application, though as noted earlier Zoubir 21 served in January 2025 does invite the court to grant such relief.

Both parties submit that Mr Thomas’s cross-application is merely the mirror image of Harbour’s Enforceability application. Harbour also submits that, in the circumstances summarised earlier, it was in effect pressurised into making the application by Mr Thomas’s own threats of action, as well as Dr Cochrane’s application in Jersey raising the PACCAR point. Harbour submits that, in order to be effective, any debarring order needs to cover both the cross-application and the defence of Harbour’s Enforceability Application, and that Mr Thomas should not be allowed to escape from debarring by a procedural technicality.

At the same time, the fact that Harbour has itself issued the Harbour Enforceability Application is not without significance. But for Mr Thomas’s cross-application, Harbour would have been arguing for a debarring order falling wholly outside the terms of the Debarring/Stay Application, and which sought debarring in relation to an application raised by Harbour itself without a claim or application having been brought by Mr Thomas himself. Further, the fact that Harbour has felt it appropriate to issue the Harbour Enforceability Application itself may suggest that there is a point of substance that needs to be resolved, and which is relevant to the proceedings in Jersey as well as those here. As matters now stand, this court may be asked to address the PACCAR point at the Enforceability Hearing, contingently on Mr Thomas being able to overcome the various significant bars which stand in the way of his being entitled to rely on it (and, if relevant, the further bar applicable to Dr Cochrane by reason of her participation in the LCL Settlement).

It is clear from the history summarised earlier that Mr Thomas has been engaged in a persistent and collusive course of conduct aimed at avoiding the consequences of the Directed Trial Judgment. Further, for the reasons given in section (D)(1) above, I consider that Mr Thomas has not properly complied with paragraph 5d of the DDO, because his purported explanation of Dr Smith’s involvement in Mr Thomas’s cross-application has been unsatisfactory and incomplete. The costs orders that remain unpaid, albeit not directly owed to Harbour, are also a relevant consideration.

However, the question of debarment does not arise in the abstract but, rather, in relation to a specific proposed participation on Mr Thomas’s part in the proceedings. The question is whether Mr Thomas’s misconduct in the proceedings to date makes it just that he should be debarred from defending, and cross-applying in, the Harbour Enforceability Application.

The raising of PACCAR by, successively, Dr Smith, Dr Cochrane and Mr Thomas could be viewed as yet another facet of a course of abusive conduct seeking to evade the consequences of the Directed Trial Judgment. However, that cannot be said to be clearly the case.

First, the fact that Mr Thomas and others have acted abusively in the past does not demonstrate that further steps they may take are necessarily to be regarded as abusive.

Secondly, the PACCAR issue is distinguishable from an obvious abuse of the type which commonly involves attempting to recycle arguments already made, considered and rejected. It relates to a discrete issue of law, arising from a Supreme Court decision on a point that has led to challenges to other litigation funding agreements. Further, although in principle the point was available to be taken during the Directed Trial, the decision of the Competition Appeal Tribunal in the Trucks case was against it at that stage, and that decision was affirmed by the Court of Appeal shortly before the end of the Directed Trial.

Thirdly, some account should be taken of the fact that Mr Thomas has, belatedly, paid the outstanding costs orders due to Harbour, and during the hearing before me has offered to provide security for costs via ATE insurance (from an entity within the jurisdiction, separate from LitFin).

Fourthly, insofar as costs orders against Mr Thomas remain outstanding, I am not persuaded that they have sufficient nexus with his proposed participation in the Enforceability Hearing to be a significant factor in favour of debarring him. I do, however, take account of them (as well as Harbour’s general points about the length and cost of proceedings, significantly contributed to by Mr Thomas) when I consider security for costs.

In all the circumstances, I am not persuaded that it is abusive for Mr Thomas to have raised the PACCAR argument, or to defend or cross-apply in the Harbour Enforceability Application based on that argument; or, at any rate, that it is sufficiently abusive to justify debarring him from participation in the hearing of that application, either immediately or unless he complies with conditions of the kind proposed (in the alternative) by Harbour. I am not persuaded that I should reach a different conclusion if, as appears entirely possible, Dr Smith has been helping Mr Thomas in relation to the Application.

A further consideration is that, on the basis that the Enforceability Hearing may reach the PACCAR point in any event, it would not be ideal from the court’s point of view to have the benefit of arguments from one side only.

I make clear that nothing I have said above in relation to the question of debarment in any way pre-empts the court’s decision on the issues due to be heard at the Enforceability Hearing about whether Mr Thomas is disentitled from raising the PACCAR argument by reason of considerations of finality and res judicata (nor, if relevant, any argument based on abuse of process in the Henderson v Henderson sense).

Harbour’s application filed on 1 August 2025 seeks orders that:-

“1.

Mr Thomas shall provide security for Harbour’s costs of the Thomas Cross Application in the sum of £290,700, either:

a.

by payment into court, or

b.

by provision of a First Class Bank Guarantee from a UK-based bank, or a suitably worded ATE policy with relevant anti-avoidance provisions, or any other form of security proposed by Mr Thomas that is acceptable to Harbour and the Court.

Harbour submits that the court has jurisdiction to require security for costs, based on CPR r3.1(3)(a) (making orders subject to conditions) and CPR r3.1(5) (failure to comply without good reason with a rule, practice direction or relevant pre-action protocol), each of which empowers the court to order a party to pay a sum of money into Court, which then stands as security per CPR r3.1(6A). Any such order should be a proportionate and effective means of achieving a particular purpose, and requires the same consideration of the same factors, such as risk of stifling, as apply to orders requiring satisfaction of unpaid costs orders (see WB Notes 3.1.14.2 to 3 and 3.1.16, and Komcept Solutions Ltd v Prestige Group [2018] EWHC 1550 (Comm)).

Harbour submits that there is no risk of stifling here. Mr Thomas has not sought to raise any such argument, nor to give the full and frank disclosure that would be required. Indeed, Mr Thomas’ position is that he has litigation funding in place for the Enforceability Hearing. However, the position in that regard is highly unsatisfactory from Harbour’s point of view, because LitFin is out of the jurisdiction and Mr Thomas has now confirmed that LitFin is unwilling to submit to the jurisdiction and unwilling to put up security voluntarily. He has also declined to disclose the full terms of the LitFin funding agreement, which would enable the court to see whether LitFin is contractually obliged to fund security for costs if Mr Thomas is ordered to provide it.

Further, Harbour points out, Mr Thomas has been able to access funds where it suits him, referring to:-

Mr Thomas does not dispute that the court has power to order security for costs, though he invites me to consider whether such an order should be refused or tempered on the grounds of delay on Harbour’s part, and otherwise to look carefully at the appropriate figure. For completeness, I record that I am satisfied that the court does have jurisdiction to order security here, at least under CPR r3.1(5) (failure to comply without good reason with a rule, practice direction or relevant pre-action protocol). Mr Thomas has breached court orders, both in relation to costs and in relation to the DDO, and an order for security is justifiable in circumstances where Mr Thomas has (in the ways I have already outlined) demonstrated a lack of “will to litigate a genuine claim or defence as economically and expeditiously as reasonably possible in accordance with the overriding objective” (Olatawura v Abiloye [2002] EWCA Civ 998 at [25]).

I do not consider that security for costs should be refused or reduced on the grounds of delay. It was raised some months ago in Zoubir 21 dated 13 January 2025 and Zoubir 22 dated 14 March 2025, at the CMC (28 March 2025), in correspondence, and then by Harbour’s formal application of 1 August 2025. Mr Thomas did not suggest that he had been prejudiced in any way by the lapse of time between (a) the issue of the Harbour Enforceability Application, the issue of Mr Thomas’s cross-application or Mr Thomas’s affidavits purporting to comply with the DDO and (b) the issue of Harbour’s security application.

Harbour seeks security in the sum of £290,700. That is the total of:-

I am satisfied that it is appropriate to order security for costs to the extent that Harbour’s costs are likely to be increased by reason of Mr Thomas’s cross-application. That includes the costs mentioned at (i) above, and a significant part of the costs at (ii) above. Overall, I consider the just order to be for security in the sum of £200,000.

Security should be provided promptly by payment into court or the provision of a suitable bank guarantee from a first-class UK-based bank. If acceptable ATE insurance can be provided, then the parties may in due course agree (or the court may direct) that security over that insurance should replace such funds or guarantee.

The Committal Costs were the subject of a statutory demand and a bankruptcy petition, which as at the date of the hearing before me was due to be heard on 23 September 2025. After the hearing, the parties notified me that Mr Thomas was adjudged bankrupt on that date by the Insolvency and Bankruptcy Court. The parties did not suggest that that fact altered any of the matters I had to decide, but I shall hear any submissions that may be made about its impact (if any) on the appropriate relief.