CL-2022-000025 - [2025] EWHC 2331 (Comm)

Throughout these proceedings until 30 May 2025 (shortly before trial, though after the PTR), Mr Kerr was represented by BCLP. He therefore had the assistance of BCLP at the stages of pleading his case (his Defence, as well as the amendments and re-amendments to it, were drafted by counsel), of disclosure, of drafting and serving his (and Mr Naylor’s) witness statements, of instructing experts, and at three interlocutory hearings (at which he was represented by counsel) including the PTR. I mention this simply to note that, although Mr Kerr acted in person at the trial, he did so with the benefit of the material which had been prepared by and with the benefit of BCLP and counsel when they were engaged.As for the trial itself, Mr Kerr conducted it himself (with the occasional assistance and prompting from Mr Naylor, who attended with Mr Kerr) and did so with commendable skill, clarity and courtesy.

Mr Perelman and Mr Kerr both gave evidence at trial, and Mr Kerr also called Mr Naylor. Expert evidence was given in the fields of i) the valuation of PGC’s shares and ii) Guernsey law. I will refer to the experts when dealing with their evidence, below.

There was a sustained complaint made in relation to Mr Kerr’s conduct regarding his disclosure. In particular, although he had received a letter from Mishcon de Reya in November 2021 making clear he was required to preserve documents relevant to the subject matter of these proceedings, Mr Kerr said that during December 2021 he had lost all of his WhatsApp messages and text data for 2020 and 2021. His account of this, in a witness statement and in his oral evidence, was inconsistent in some of its details (e.g. in relation to dates), but the gist was that he had transferred all his WhatsApp content and data from his phone to a temporary phone for a trip to Australia (deleting it from his phone in the process), then after his trip to Australia lost his temporary phone on the way to or at Singapore airport, then when setting up a new phone accidentally selected the wrong option such that he deleted, rather than transferred across to the new phone, his historic WhatsApp data and text messages. He said he did not back up his mobile phone. On Mr Kerr’s account, this loss was therefore the result of a series of unfortunate accidents. Mr Lemer (who appeared from Mr Perelman) submitted that was quite hard to accept, but did not ask me to reject the account.

What was difficult to understand in this context was how Mr Kerr could have made statements in section 2 of his DRD, in July 2022, that “The Defendant is not aware of sources that are unavailable but may host relevant documents” (Footnote: ¹) and that “The Defendant is not aware of any irretrievable documents” (Footnote: ²) in circumstances when he knew, at that point, that he had lost access to the data. In cross-examination, Mr Kerr said that at the time he prepared the statement he thought that, with forensic assistance, BCLP might have recovered or found the material, such that he did not know at that point that they were permanently irretrievable. If that was the case, that made the answers in the DRD at best incomplete.

Mr Perelman disclosed all of the relevant WhatsApp messages between him and Mr Kerr. So the upshot of the lost data was the absence of WhatsApp and text messages between Mr Kerr and others, including Mr Naylor (Mr Naylor also having lost both the WhatsApp and text data stored on his previous mobile phone when he acquired a new one in around September 2021). There may have been interesting and illuminating content in such messages, or there may not have been. It was not suggested that it would have been directly relevant to the issues I have to determine, or that I should draw any specific negative inference from the absence of the data. Accordingly, whilst the position (including how it was presented in the DRD) was somewhat unsatisfactory, I say no more about it in this judgment.