Case No. FD19F00071

to act … to follow and accept any and/or joint instructions regarding the Foundation and its assets from … ND”. (emphasis added) 80.There has never been any document that H can produce which actually vests the interest that H has in the entities in any other person. The fact that the correspondence from U describes ND as the “only discretionary beneficiary” takes the matter no further. It is not what any document shows. 81.In considering the Foundation it is important also to consider the events of 2012 when it is clearly shown that H had intended to transfer all his interest in the Foundation assets to W. ND never questioned it. The letter from U makes it clear that the instructions to reassign the benefit came from H direct to U. That it did not happen is not the point; it shows where the control rested. 82.H continued with his business activity in Russia and he says that his hope had been to sell up in Russia by about 2014. However, in 2013 he was threatened with criminal proceedings by the Russian state and only in 2015 was the threat removed when he agreed to handover the Russian businesses to the state. W accepts that the period 2013-2015 was a very difficult time financially for H. 83.Between 2012-November 2020 H has received loans from MI Ltd (a company within the Foundation) to the tune of some £13.4m. He has the facility to draw £15m. H accepts that he will never be required to repay the loans in his lifetime. 84.He estimated, through ND, that exclusive of the loans to him there remained in the Foundation some £17.5-£19.2m but which he says is now reduced to some £13m. 85.I asked H how it was that he foresaw he would meet his needs for the rest of his life. He said that he hoped to get back to earning a good income from construction projects in Russia but he accepted that if that was not sufficient to meet his needs he would ask ND to borrow further from MI and I have no doubt that funds would be made available to him. He did not demur from this proposition and there has been no suggestion that at any time a request by him for funds has been denied. 86.H says that there have been no distributions from the Foundation. H has had his loans from MI and ND has had loans from another company within the Foundation of about £1.5m. But, H says, there have only been loans, not distributions. 87.I do not accept that this is accurate: i)Three houses have been purchased with the use of funds from the Foundation, namely the Majorca property (held in the name of a company wholly owned by W), the matrimonial home (in joint names) and property in Cyprus (in H’s name). ii)The matrimonial home was funded by way of loan, but placed in the name of the parties, save for the last £1.7m received from the sale of an apartment at the Savoy Hotel which H had developed with Foundation money. iii)All three properties and/or the loans used for their purchase appear on the books of the Foundation as assets held by it. 88.If further evidence of control of/resource to the Foundation is needed, I refer to the making of loans to H’s cohabitee, which he says will not be repaid, and the investment in the Russian restaurant at his instigation. 89.H repaid into his loan account £850k from his Coutts portfolio when that was liquidated in 2018 and he claims to have repaid £700k following the sale of the first London home which monies were then used (I do not know in what form) for the German construction projects. Mysteriously, this latter transaction does not appear on the schedule produced of the loan account. 90.In a telling comment, the managing director of U wrote to H’s solicitors who were seeking information about the correct legal position of H’s relationship with the Foundation that “I remove the reference to the fact that the mandator ‘has ultimate control over the structure’ since,