CA-2025-000010 - [2025] EWCA Civ 933

The judge gave a short ex tempore ruling. The transcript of it adds a post-script that it was:

“…intended to be read and understood in the context of the discussion during the hearing itself. Elements of the reasoning can be gleaned from that discussion. This enabled my ruling to be short, but it is not self-contained…”

The ruling itself is more conveniently set out in full rather than summarised:

“1.

I am going to order these conditions -- well, subject to what we are going to discuss next. I am not going to give a ruling beyond indicating what I did at the outset: that having read the Judgment of Mr Justice Bright and the Judgment and the Order of Mr Justice Robin Knowles and having taken on board that fact pattern and that behavioural profile, and in the circumstances summarised in paragraphs 4 and 5 of the Claimant’s skeleton argument, notwithstanding all the points that I have heard in response, I am persuaded that it is in the interest of justice and in furtherance of the overriding objective that there are conditions attached to D4’s ability to defend this claim in circumstances where it eventually agreed to be joined to this action on terms where it would file a defence within the timeframe that it obviously considered was achievable, and then proceeded instantly to fail to do so, and therefore comes to the Court seeking an indulgence and relief from sanctions entirely of its own making.

2.

As eloquent and articulate as Mr McCulloch was both in writing and orally in seeking to dissuade me from taking this course, I have to say there is an air of surreality about the position taken by D4 in conjunction with D2 in terms of the corporate reality behind the scene on the defendants’ side; and I express - and I think I am free to express - some scepticism about some of the technicality that I have heard in terms of invocation of separate corporate personality and absence of de facto control.

3.

I say no more than that, and therefore, even though it is the case that there is no monetary claim made by the claimant against D4 and even though it is the case that D4 has not behaved procedurally for as long as or in the same qualitative way as D2 has, I am nevertheless persuaded that it is in the interest of justice that D4 posts security and undertakes, through conditions-- and maybe ‘undertakes’ is the wrong word, but has conditions imposed upon its ability to substantively defend these proceedings.

4.

I do that so as to protect the dignity of the court process in circumstances where there is evidence on the face of the record here that its dignity is not being respected. What I propose to do, therefore, subject to detail-- I have in mind either 17 or 24 January as the compliance backstop. I am going to stick with the absolute language of ‘procure’ for the bringing-- the return, I should say, or the restitution of the Unpledged Shares, consistent with the logic and indeed the letter of Mr Justice Robin Knowles’ Order against the other defendants.

5.

I am going to order €10 million, and not just because it is not 18 and it is not 9, but it strikes me as a round figure, and there is nothing that really turns on that, but that is just how it strikes me. I am going to reserve over to the CMC the condition as to procuring-- or rather paying the cost orders of others, because that is not a procuring. That is just a paying. I am going to say no more about that, but that can come back before the judge at the CMC, as can any application to ‘top up’ the 10 million, as can any application made by D4 in the meantime, with evidence to explain why it is not in a position to comply with the primary order I have made as to procuring the restoration or restitution or repatriation of the Unpledged Shares.

6.

That is something within the time frame we are talking about, which is either four or five weeks from now and, therefore, two or three weeks ahead of the scheduled CMC, which I consider to be fair for D4 to operate within. So if it says, with evidence, it cannot do this, then it has to explain why, and that can all be reserved to the CMC judge, and if you need to revise the estimate for the CMC in light of what I am reserving to the CMC judge, who as you know will not be me, then you will have to do so, but I would want all that recording in the Order as well.”

Paragraphs 4 and 5 of the Trustee’s skeleton argument, referred to in paragraph 1 of the ruling, set out a summary of the facts and procedural history, including Bright J’s assessment of the factual account being put forward by way of defence as “extremely unimpressive”. The reference to costs orders in paragraph 5 of the ruling is to the Trustee’s attempt to secure additional conditions that Xinbo satisfy previous costs orders made against Dynamic.