CL-2020-000117 - [2025] EWHC 1620 (Comm)

On 24 February 2015 and 26 May 2015, Falcon acquired 100 units of the Solid Venture P2P ETI for €10.1m. The issuer was an entity named Delta1 Securities Plc., a Maltese registered company. The ETI represented debt that was repayable only upon receipt by the Issuer of payments or proceeds from the collateral. The collateral consisted of performance linked bonds issued by Al Undertaking XII Inc., a public limited company incorporated in St Vincent and the Grenadines and constituted as a wholly owned subsidiary of the Issuer. As the Securities Note for this product stated:

“As holder of such bonds, the Issuer shall bear not only the risk of the underlying assets but also the Collateral Obligor's risk. Such bonds do not offer a principal protection but would be redeemed at a predetermined price linked to the performance of: (i) a managed account held at Sparkasse Bank Malta plc; and (ii) registered, non-listed bonds held directly by the Collateral Obligor.”

TAM described the product as being “… a securitisation (UCITS eligible) of a loan to Solid Venture Capital (SVC) Ltd in the form of a performance linked bond.” The purpose of the loan was said to be for investment “… in Peer to Peer lending platforms (P2P) either as equity or more likely debt. SVC will manage this aspect with no input from the PM's etc. SVC will take its share of the profits raised (for identifying, managing the PE investment) and pass on 12% to the fund. The fund will therefore receive a high yield for little ongoing input from the PM's.” The role of Mr Serwin in the acquisition of this investment by Falcon is apparent from an Argentarius internal email exchange to Mr Wölfl from Mr Philip Eaton Richards then an employee of Argentarius that:

“Temple Asset Management is now appointed as asset manager and so Emil believes that he can get subscriptions from Falcon funds in the first week of January for this ETI and for the next one which he is happy to pay for once this one is launched. He mentioned 4 - 5 million which would be 5% of the fund. So I think Emil is a bit more relaxed now he knows it can happen January as long as we have everything in place.”

The asset manager referred to can only have been Mr Ökten. At the time when this was taking place, Mr Serwin was a joint owner and director with Mr Gergeo of SVC. Thus in relation to this transaction Mr Serwin was both procuring acceptance by Falcon of the proposed investment whilst at the same time being ultimately a beneficiary of the investment by virtue of his shareholding in SVC. Of the €10.1m paid by Falcon for this investment, €9.9m was transferred to SVC Ltd – passed through the accounts of Delta1 Securities Plc and AI Undertaking XII Inc – see the documentation referred to at footnote 49 in the first report of Mr Holt, the forensic accounting witness acting on behalf of the claimant. Of that sum, €900,000 was paid to Mr Serwin and €900,000 was paid to Werel and €100,000 to Gergeo Invest. Another part of the sum invested was invested by SVC in a loan to a peer-to-peer lending operation carried on by a Swedish entity called Trustbuddy AB (“Trustbuddy”). The loan was apparently on commercial terms but was lost when Trustbuddy was placed in insolvent liquidation in October 2015. The total sum actually lent using the ETI generated funds appears to have been €2.4m. When Falcon disposed of its interest in the Solid Venture P2P ETI, it appeared to recover €7.4m, but in fact the redemption monies were obtained by transferring the claimant’s monies invested in other ETI investments. The detail leading to this last conclusion is complex and is not something that I need set out in full. It is addressed by Mr Holt in paras. 6.31 – 6.46 of his first report and is evidenced by the documentation that he refers to in those paragraphs.

On the basis of this material, the claimant submits that the Solid Venture P2P ETI was a fraudulent investment the purpose of which was to transfer money to Mr Serwin and his associates via SVC (UK). I accept this submission because no serious attempt was made to justify how this investment could properly be adopted by a fund investing in low or balanced risk funds on behalf of pension savers and because it provided a risk-free way for Mr Serwin to gain access to and use pension saver funds. I also accept that on a proper analysis Falcon lost its entire investment, because the sums received back were funds received from later similarly structured investments. However, I also consider the claimant’s approach which is to treat the repayment apparently made as such a repayment to be correct because the sums used for that purpose will be recovered by reference to the later schemes if and to the extent those are shown to have been fraudulent.