Case No. FD11D02580

132.My starting point in relation to these matters is the position which confronted the court on 7 November 2016 when I sat to embark on what I expected to be a second five-day final hearing. I was by then already very familiar with the case having delivered a full judgment on the first set-aside application in 2015: AB v CD (cited above).133.W’s Form E sworn for the purposes of that second set-aside hearing recorded the fact that H had earlier that year disposed of the former matrimonial home in South Kensington for £10.75 million. She restated her case that this was, in essence, a matrimonial asset to which she had contributed both in terms of direct financial contributions and in terms of its extensive renovation. It listed her liabilities, which included her Investec loan, used in part to pay for the work undertaken at the properties used as homes during the marriage17, and the costs order I had made in relation to the first set aside hearing, as c. £1.15 million. In relation to business interests, W explained that, following the sale of her shares in B Ltd earlier that year, she retained a 50% equity stake in a small start-up business which had not yet started to trade. She retained for the time being her directorship in B Ltd and three other companies.134.Both parties had filed lengthy section 25 statements for the purposes of drawing the battle lines for the 7 November hearing in 2016. W described their position thus: “we are now back to ‘square one’” (para 2). She spoke of H’s whole focus being upon continuing allegations that she had failed to disclose assets, including her alleged interest in Zinc and what he perceived to be related entities. Her statement set out over the course of several pages her specific allegations of the failure on his part to make full financial disclosure of his own commercial dealings and the assets he held. She accused him of significantly understating his income and treating various trusts and companies as personal bank accounts through which he defrayed personal expenditure and ran elements of his domestic economy.135.W provided in her section 25 statement a lengthy narrative in relation to her previous involvement with Zinc, MP and other entities. She acknowledged that much of this was evidential ground which was covered exhaustively over several days which she had spent in the witness box being cross-examined during the set-aside hearing in relation to the 2012 order.136.H’s section 25 statement was sworn on 31 October 2016 just a week before the November 2016 hearing. His position can be summarised thus from the content of that witness statement which was intended to stand as his evidence-in-chief for the purposes of the 2016 hearing:-(i)he did not believe that W had disposed of her beneficial interest in her shares in B Ltd;(ii)he did not regard the documents she had produced to support the sale to MP and/or the payment of £189,540 received as genuine evidence of the sale;(iii)he believed that Zinc was, and is, “wholly or substantially owned and controlled” by W.137.The entirety of his lengthy witness statement is thereafter taken up with several pages of what purport to be forensic argument as to why her case was a fabrication. In relation to the sale of the B Ltd shares to MP, he said this:“[MP] (Asia) LLC is stated to have an address on [W’s] stock transfer form in Singapore. It is hence natural to conclude that this company, like Zinc and Courtil, is also offshore. It is impossible to know whether [W] established this company and is it’s [sic] shareholder, it is her nominee, or whether it holds the [B Ltd] shares in trust for her.So I have no way of knowing the true details of any deal and no means of finding out. However I do have the ability to research the buyer as [W] did provide their details on the ‘stock transfer form’. Checking the World Wide Web, the entity [W] claims to have sold her shares to some 4.5 months ago doesn’t appear to exist. It has no footprint, history either on it's [sic] own or, even, any similar named entity at the address [W] gave.”138.H goes on in his October 2016 witness statement to give a number of reasons why he found W’s narrative account of the sale of her B Ltd shares to be “frankly ludicrous”. Over a further eight pages of developing narrative, H lays out his case in relation to the following:-(i)W’s offshore funds and Zinc;(ii)Zinc’s creation as a vehicle for the sale of one of W’s previous commercial transactions;(iii)Allegations in relation to W’s extensive business relationships with Courtil, Zinc and other connected entities;(iv)Zinc and the Investec loan;(v)Complex company structures; and(vi)Treating Zinc and its underlying assets as her own.139.Then, as now, H was pursuing specific allegations against W that she operated her commercial affairs through “Zinc, Courtil or both, as significant or sole shareholders – often to the exclusion of [W] herself”18. Then, as now, he relied upon inferences to be drawn from the fact that Courtil and Zinc had the same registered address in Guernsey suggesting “a strong connection between the companies and [W]”. He was inviting findings that “Zinc Ltd is owned wholly or substantially by [W] or by her family as her nominees”. 140.He produced for the purposes of his arguments then, and exhibited to his written statement, a detailed corporate organogram, familiar in its structure and presentation to all of us who deal professionally with complex financial remedy cases. By that presentation, he sought to establish an inter-linking structure involving all the above-named corporate entities, including Zinc, with W appearing as a specific icon at its centre. The organogram included, then, the identification of LC, one of the current directors of FNB, the corporate successor of Ansbacher Trust in Guernsey, and the link between him, Zinc, other entities and W.141.As to Mr C, W’s former boyfriend/fiancé, H has sought to adduce in these current set-aside proceedings a lengthy statement from him dated 20 October 2016. That statement was plainly prepared in support of H’s case in the 2016 set-aside proceedings although, as I understand that position, he had not secured the court’s permission for the admission of that statement as the case opened on the first day of the November 2016 hearing. I read Mr C’s statement de bene esse for the purposes of this hearing. It deals with H’s previous allegations that W had offshore funds in Guernsey following the sale of a previous business in respect of which remission to the UK would have triggered a charge to tax. This evidence dates back some 16 years at least: W’s relationship with Mr C ended in 2006. Mr C explains the background to the £86,000 loan he made to W and his demand for repayment of the same in 2016 before the loan became statute-barred. It touches on hearsay evidence of what Mr C knew about a potential connection between W and another entity in which it was alleged W had an interest. It refers to the sale of Mr C’s own shares in B Ltd to Zinc prior to an onward sale to one of B Ltd’s major corporate investors. It records H’s belief, as conveyed to Mr C, that “Zinc is actually [W’s] company”, a position upon which he says he is unable to comment.142.This was the essence of the case which H was running in November 2016. It remains the essence of the case which he seeks to re-run now. In terms of the wider reach of his allegations in 2016, H’s case was that W had been derelict in her duty of full and frank disclosure to this court. He was alleging that she sat metaphorically at the centre of a complex and sophisticated offshore corporate structure which had been erected and maintained to conceal from his and the court’s view the true beneficial ownership of a number of companies and thus the full extent of her personal wealth. Specifically in relation to MP, his case then, as it is now, was that she had, or was likely to have, created this entity with the specific intent of enabling her falsely to fix the value of shares in B Ltd at £1.17 which he contends to be an artificially low valuation contrived to impact adversely his entitlement in the ongoing financial remedy proceedings between them.143.Despite my specific findings in relation to Zinc as a result of the 2015 set aside proceedings, H remains unable or unwilling to accept them. It is important to remember in this context that those were not findings made on the basis of the written evidence alone. H’s earlier iteration of these allegations was forensically tested through the cross-examination of a number of witnesses including W, Lord Stevens19 (one of the main board directors of B Ltd), David Fletcher (the chairman of Odey) and Mr Barry Stiefel, a witness called by H. At paras 126 and 127 of my judgment, I said this:-“126.…. Much of what Mr Stiefel told me appeared to be based on incomplete knowledge and assumption. The issue of the ownership of the shares in Zinc Limited is a good example. W told me during the course of her oral evidence that she had never provided funds to Zinc to enable that company to purchase shares in B Ltd. Initially she had owned 99.9% of the shares in B Ltd as its founder. Zinc Limited became a shareholder in September 2005 during the first stage of external funding. W’s own shareholding at that point reduced to about 80%. Over four further rounds of external investment, her interest in B Ltd was further reduced so that, by 2009, she held a 38% equity stake in the company.127.Further, David Fletcher, the Chairman of Odey, was to tell me during the course of his oral evidence that his company had received an assurance from the B Ltd board that there was no connection between W and Zinc Ltd when Odey acquired some shares in Zinc in 2011. I am entirely satisfied that W was telling me the truth when she denied any relationship or connection with that company. I am also satisfied that neither she nor Lord Stevens made any representations to Mr Stiefel about selling shares in B Ltd twice. W denies this and her denial is supported by Lord Stevens and Professor Kay20 who told me that this is something which Mr Stiefel himself had not surmised until the facts were explained to him by Professor Kay himself.”144.That was the basis on which I rejected the existence of even a prima facie case in 2015 in relation to W being the owner of, or having a beneficial interest in, Zinc Limited.145.On behalf of H, Mr Elliott QC took me through a significant number of documents which had been produced or generated in connection with the corporate structure reflected in H’s organogram. Most of the entities appearing on H’s organogram when it was prepared in 2016 remain part of the contextual fabric of his case as it is advanced now on his behalf by Mr Elliott QC. H was aware then of W’s case in relation to the sale of her shares in B Ltd to MP. It is put on his behalf that he did not then have the complete picture and was persuaded on the basis of W’s assurance to compromise his claims and thereby abandon the opportunity to test forensically such evidence as he had then already marshalled with assistance from his experienced legal team. He took the decision to settle the litigation and signed up to a final order which was clearly intended to be a full and final settlement implementing a complete clean break between the parties and an end to the litigation. Not only was that position reflected in the order and given operational mandate by the court, he waived any entitlement to pursue further information or documents as a specific consequence of having “drawn a line” under the issues then outstanding in relation to financial disclosure (para 8.1. and 11 of the order).146.It is in this context that his present challenge to the same documents and the same information has to be seen. By way of example, when we looked during this hearing at the copy of W’s Investec loan agreement dated 1 June 2007 (available at the hearing in November 2016), I was taken to the reference in para 14.1 of that document which records that Zinc Limited was pledging to provide a cash security deposit equivalent to the value of the loan for the duration of the loan. Mr Elliott QC told me during the course of his submissions that it was that clause which “made everyone fall off their chairs before the November 2016 hearing”. I will assume this to be a reference to everyone forming part of H’s legal team at the time. If that is true, it merely reinforces the accumulating base of evidence and/or knowledge from which H decided to walk away in terms of his willingness to pursue this litigation in 2016. He could have invited the court to allow him to challenge W by way of cross-examination from the witness box either as part of a final hearing which had been listed for the rest of that week or, if there was concern about the viability of the five-day time estimate, by way of a preliminary truncated procedure such as that deployed in OS v DS21. He did neither.147.And so I turn now to look at what is “new” in this case such as would enable me to dismiss the current strike-out application and proceed thereafter to case-manage the substantive set-aside action. I look first to the entry in the BT plc AIM Admission Document dated July 202122. That document includes at section 9 a list of the “selling shareholders”. Amongst several already familiar individuals and corporate entities appears the entry relating to MP and the shares it was selling as part of the placing. The ‘new’ information, according to H, is the reference to the business address of that company at La Plaiderie House in Guernsey. The search conducted by H’s legal team reveals that the company has three professional directors, each of whom was appointed on incorporation on 16 May 2016. Its resident agent is shown as FNB International Trustees Limited. From the search undertaken in the Guernsey Registry on 7 April 2022, we know that this specialist provider of international offshore services was incorporated on 3 April 1973. It has been in business according to its Registry profile for over 40 years to provide “a wide range of fiduciary services, from private trust and company facilities for the individual or family to corporate structures, such as Employee Benefit Trusts, Pension Plans and Special Purposes Vehicles for multi-national companies”. It has a full professional team of “key people” in place most of whom according to their profiles appear to have significant professional experience in the financial and trust sectors. It numbers scores of corporate and business clients within its operational portfolio. From the foot of the publicly available information, I find it highly improbable that FNB is an entity in which W has any beneficial interest and/or over which she is able to exert any control. Specifically, H has produced nothing prior to the November 2016 hearing or since to persuade me that W has any ability to manipulate, or dictate terms, to the directors of FNB Trustees such as to influence them to perpetrate some form of fraud or deception in relation to the ownership of the shares in the various entities which make up their corporate client base.148.In this context, and by way of example, I note that, as a result of its prior connection with FNB’s corporate predecessor, Ansbacher Trust, Courtil Ltd is shown on the organogram as part of the “shadow” structure with W at its centre. Courtil was a company incorporated in September 1971. By my calculation, W was then not yet 3 years old. Whilst registered at the La Plaiderie address, it was compulsorily wound up in 2002 and no longer has any active status.149.In my judgment, none of the company documents or filings to which I was taken by Mr Elliott QC as we travelled through the bundles establishes ‘new’ or fresh material which would justify a re-opening of these financial claims which were definitively closed down both by the parties and by the court in November 2016, some five and a half years ago. Much of the information and documentation was either available to the parties in October/November 2016 or was information which was already known. I accept that there remain certain gaps in the overall picture which emerges. For example, I accept that the evidence before the court is that, as at 12 May 2022 when Rosenblatt tried to effect personal service of a letter before action on the company, there does not appear to have been a corporate presence or footprint of MP (Asia) LLC then operating out of the Ocean Financial Centre in Singapore. The certificate of attempted service at [1/270] confirms as much. But that, without more, does not provide an evidential foundation for the quantum leap which H seeks to make, as with so much of his case, that it did not exist as a company some six years earlier in 2016 when W is said to have sold her shares in B Ltd. 150.He alleges that the documentation she has provided to support her case is not capable of verification and/or that the documents are fraudulent instruments. That latter allegation can only flow from his case in relation to the inferences which he invites the court to draw. It seems to me that what he is actually seeking in his resistance to the current strike-out application is a green light from this court which would permit him to embark upon a wholesale discovery exercise against various third parties, both on and offshore.151.There is now before this court a letter from MP Limited written from its registered address in Guernsey (the La Plaiderie address) written to W’s solicitors on 3 February this year confirming that the company is neither owned nor controlled by her. It further confirms that she had no involvement in the incorporation of the company. The identity of the Director who signed the letter has been redacted but I was informed that W was willing to disclose an unredacted copy to the court. On behalf of H, Mr Elliott QC has challenged the authenticity of this document as he has so many others. For the purposes of my decision I place no reliance on that document which I read de bene esse as I did with various documents produced by H and his team. As it stands, it proves nothing, just as H’s allegations of the fraudulent manufacture of documents by W, without more, remain just that: simple allegations based on long-held suspicion.152.The sheer scale and expense of the litigation now contemplated by H cannot provide grounds on which to prevent his current set-aside application from proceeding if granting the strike-out application would result in avoidable injustice and thereby prevent him from securing appropriate relief in these financial remedy proceedings. The court has at its disposal the means to control the scope and ambit of the manner in which either or both parties should be entitled to pursue legitimate claims in accordance with the overriding objective.