Case No. FD05D04818

28.Mr Chichester-Clark appeared at this hearing to represent the Former Receivers. Mr Simon Hunter was instructed to appear for Ms Behbehani. I had a travelling draft of the proposed order but aspects of that draft remained in contention. The issues then remaining between the parties were these:-(i)the outstanding costs of the First Receivers in respect of their receivership duties; whether they were owed the full sum of £400,000 claimed; and who should pay those costs;(ii)what should be done about Ms Behbehani’s potential claim against the Former Receivers given the unfulfilled conditions of my previous ‘unless’ order and my previous indication that they should be entitled to the debarring order which was sought; and(iii)what order should be made on the costs of the various applications which had been put before the court.29.By this stage, Mr Edwards appeared to have relinquished his role as Receiver of the Setubal shares. I had been told at a previous hearing that he had left the jurisdiction to take up residence in Brazil. Mr Gary Thompson, the Third Respondent, was appointed in his place. The scheme envisaged by the draft order which was before the court on 7 March 2022 was that the newly appointed Third Receiver would adopt his predecessor’s undertaking to the effect that the Setubal shares, and their underlying value, would be preserved until further order of the court. There would be no transfer of those shares to Ms Behbehani at this stage. For her part, Ms Behbehani agreed to pay the costs, remuneration and expenses of the Former Receivers once the quantum of those costs had been agreed or determined pursuant to CPR Part 69. In the meantime she agreed to provide sufficient security to protect their interest through a charge, or charges, on properties which she owned in Spain, or by some other agreed means, up to a limit of £400,000. On that basis, I was invited to make an injunction preventing either Ms Behbehani and/or Mr Thompson from transferring or otherwise dealing with the shares. The share transfer application was to be adjourned on this basis with liberty to apply.30.Thereafter, and prior to any application to lift the injunction, Ms Behbehani was to ensure that reasonable security remained in place for so long as the debt to the Former Receivers, or any part of it, remained unpaid. There was provision for evidence to be provided to the Former Receivers in relation to the value, prior encumbrances and title to any real property offered as alternative security for the debt. Once the debt had been discharged, the Former Receivers would be required to sign a certificate confirming that the costs of the receivership had been paid in full (the Schedule 2 certificate). Once lodged with the court, Ms Behbehani was to be entitled to apply on the papers for the discharge of the injunction preventing any dealings with the shares. A draft order was to be appended to the order (the Schedule 1 order). She would thereafter be entitled to require the Receiver to transfer to her the Setubal shares.31.That scheme represents an entirely sensible compromise of the Share Transfer Application. The formal concession that the Former Receivers should have security for their professional costs may have come very late in the day (on the eve of the hearing on 25 November 2021) but it has come nonetheless, and no doubt on good advice. For my part, I would not have left the Former Receivers exposed in terms of their outstanding costs whilst quantum was either agreed or adjudicated. It is right to note that Ms Behbehani said as long ago as December 2020 when she issued her first application for the transfer of the shares that she was willing to consider providing security subject to assessment of those costs. That position did not find reflection in any clear open proposals until 24 November 2021 on the eve of the November hearing when there was plainly insufficient time to identify the sufficiency or nature of the security offered. It was nevertheless progress.32.In terms of what are essentially drafting points on the order which now reflects this scheme, my rulings are now reflected in the approved draft which comes to the parties with this written ruling.33.One of those issues concerns what Mr Hunter has referred to in his skeleton argument as ‘Main Issue A’. It relates to how the Former Receivers’ costs (up to £400,000, subject to formal assessment) are to be paid. It is Ms Behbehani’s case that payment must be deferred until she is in a position to liquidate the shares or, alternatively, declare a substantial dividend or similar payment from Setubal. Mr Chichester-Clark has drafted the order on the basis that the costs of the Receivership shall be paid to the Former Receivers within14 days after the conclusion of the CPR r 69.7(5) assessment or, if later, within 14 days after the date on which they are able to certify that all outstanding costs have been paid and thus Ms Behbehani is entitled, under the scheme of the order, to apply to the court on paper for the lifting of the injunction preventing transfer to her of the Setubal shares.34.The issue in this context is whether the substitution of a different security asset changes the identity of the fund from which payment to the Former Receivers is to be made. It has always been an integral part of the Former Receivers’ case that their agreement to accept the appointment was predicated on the basis that Mr Barroso (who made the original approach to Messrs Wolloff and Short in respect of their professional involvement) and/or Ms Behbehani would assume personal liability for their fees and disbursements incurred during the Receivership. As far as I am aware, that position has never been the subject of formal challenge in these proceedings.35.The position which appeared to have been agreed following the hearing on 25 November 2021 was this :-(i)the underlying obligation for which Ms Behbehani had agreed to provide appropriate security is the payment to the Former Receivers of their costs of the Receivership (defined as the sum ascertained following a determination under CPR 65);(ii)Ms Behbehani’s concern as outlined by Ms Venkata on her client’s behalf at that hearing was that she should not become liable to make any payment to the Former Receivers before she had acquired good title to the Spanish properties over which she intended to provide the Former Receivers with a charge. As matters stand, the current wording of the draft proposed by the Former Receivers reflects their position that she should not be required to meet those costs, once assessed, until fourteen days after agreement or assessment of those costs.36.It seems to me that it would not be right to deprive Ms Behbehani of the ability to apply to the court following a CPR 65 determination or assessment of the Former Receivers’ costs. Whilst I propose to leave the drafting of the order as an obligation on Ms Behbehani to pay the Former Receivers’ costs without any corresponding stipulation as to the provenance of such payment, I am not going to preclude an application to extend the time for payment. She needs to be aware, however, that the court is unlikely to entertain such an application without the clearest evidence in relation to the sum, or sums, she has recovered from Setubal and the up-to-date position of her own financial circumstances. As I shall explain, the evidence which she has filed to date in these proceedings has been wholly unsatisfactory and I can only repeat that I have placed no reliance upon it. She is not a litigant in person and I can only assume that what she has put before the court has been designed to obfuscate rather than clarify.37.That then leaves the issue of the debarring application and costs. I turn now to deal with each of those issues in turn.