Case No. FD11D02580

153.Applying the principles developed by the Supreme Court in Takhar together with the application of a broad merits-based judgment to all of the facts, I have reached a clear conclusion that H’s allegations could and should have been pursued in November 2016. There is nothing in the evidence he has produced since that time which persuades me that a further re-opening of his claims at this juncture is either fair or justified.154.Having conducted a full survey of all the evidence which is now before the court, albeit in the context of an abbreviated hearing, and having listened to all that has been said on behalf of each of these parties, I do not consider that H has made out a viable or reliable case in relation to his ongoing allegations of fraud or non-disclosure against W. For my part, I would regard that survey as amounting to a sufficient discharge of the burden placed on this court to conduct its own enquiry from the foot of section 25 of the 1973 Act into the fairness of the provision made for each of these parties under the terms of the 2016 consent order and/or into whether such non-disclosure, if established, was likely to have led to a substantially different order from that which was made and approved by the court on that occasion.155.For these reasons alone, I am persuaded that it would be appropriate to strike out the current set-aside application pursuant to the court’s case management powers under PD9A para 13.8.156.If I am wrong about the extent of that power in the context of this hearing or the requirements and/or conditions for its exercise, then I would nevertheless exercise my powers under FPR r. 4.4(1)(a) and (b) to achieve a similar result. I have considered all the written material before the court. I have taken account of the litigation chronology in this case. I can see no reasonable grounds for bringing this further application for set-aside of an order which has now been in place, and relied upon by both parties as final and conclusive, for almost six years. I can find no basis upon which a further round of litigation would be justified. Not only do I consider H’s current set-aside application to be ill-founded and lacking forensic coherence or substance, I take the view that its active pursuit in the context of this litigation history would fall squarely within a definition of ‘potentially oppressive’ litigation. Taking full account of the court’s resources which have already been devoted to this matter, the rights and entitlement of each of these parties to rely on the clean break which was achieved several years ago, and the haemorrhage of costs which would be likely to follow, this is a case which in my judgment falls to be struck out as an abuse of the court’s process. 157.Having had the benefit of a full forensic investigation of many of these concerns in 2015, H declined to pursue them when given a further opportunity in 2016. Not only did he decline to take up this opportunity: he entered into a comprehensive and binding settlement agreement, reflected in an order of this court, which included recitals confirming that this was a ‘drop hands’ agreement which was reinforced by a formal undertaking both to the court and to W that, despite all his concerns and suspicions, he would not seek any further financial disclosure in relation to his claims within the matrimonial proceedings. He further submitted to a specific undertaking in all-embracing terms that he would not issue further proceedings whether against W personally, as a director or shareholder of B Ltd and/or in any other capacity whatsoever. The transcript of those proceedings provides further confirmation, if such were needed, that this was intended to be a final, once-and-for-all settlement between these parties, an intention shared by the court in approving the order. These facts alone would have persuaded me that H’s further attempt to re-open his financial claims represents an abuse of the court process in circumstances where he has failed to persuade me that he has any ‘new’ evidence to put before this court. The discovery of the La Plaiderie address, the timing of the incorporation of the Guernsey company and the inferences which are said to flow from that information do not, and cannot, justify the continuation of the litigation.158.However, in terms of proportionality and overall fairness in the context of the court’s obligation to conduct a s 25 enquiry, I have also been persuaded that H’s case has proceeded on the basis of a fundamental flaw in relation to the likely value to him of his shares in B Ltd and the extent of the financial loss to which he claims to have been exposed in the context of these financial remedy proceedings. This is an important aspect of the proportionality arguments which the court is bound to take into account in the control of its own process.159.H has variously alleged in these proceedings that his shares in B Ltd which reverted to W as a result of the 2016 consent order would today be worth between £5.45 million and £10 million if standard pre-emption rights had been applied23. He claims it is the magnitude of that potential loss to him which provides, in part, the justification for the wholesale re-opening of his claims now. The evidence which is now before the court does not support that position. On 30 May 2018, pursuant to the terms of a shareholders agreement, the existing shareholders in B Ltd sold their shares to BT Ltd at a fixed price of £8.07 per share. That was the contractual share price which bound each individual and corporate shareholder. The filing at Companies House (which is a matter of public record) confirms that position.160.Had he remained a shareholder in B Ltd as at May 2018, H would have been obliged to sell his entire shareholding to BT Ltd at a price of £8.07 per share. That was the effect of the ‘drag and tag’ provisions of the sale agreement. As a minority shareholder in B Ltd, he would have had certain negotiating rights in the event of a sale which would have been matched by a binding obligation to sell on the basis of whatever deal was negotiated by the majority shareholders. On that basis, H’s 19,738 shares, had he retained them, would have had a value of just under £160,000. In accordance with the terms of the 2016 consent order, H agreed to accept from W a lump sum payment of £450,000 to include her contribution towards his costs. She, in turn, agreed to abandon her potential claims against any marital acquest represented by the net proceeds of sale from their former matrimonial home (sold shortly before the 2016 hearing for in excess of £10 million). I agree with the submission made by Mr Glaser QC that the evidence was, and is, clear: neither W nor the directors of B Ltd would be likely to have contemplated his acquisition of further, or new, shares in B Ltd. He had no tracing claim into its future commercial success within the context of his matrimonial claims and those claims had, in any event, been resolved by, and reflected in, the 2016 consent order. As is clear from the transcript of the 2016 hearing, the written evidence of the parties, and counsel’s skeleton arguments prepared for that final hearing, there had been a number of ‘valuation events’ or indices throughout the course of the litigation which suggested a highly volatile valuation curve. 161.For all these reasons, I propose to grant the relief which is sought in the context of W’s current strike-out application. There will be an order in those terms. I would anticipate that the parties will agree the way forward in terms of the costs of the strike-out application. In terms of the remaining applications before the court, it follows that I dismiss H’s application dated 26 May 2022 in relation to further disclosure. The two applications dated 30 May 2022 in respect of (i) H’s release from his 2016 undertaking in terms of future litigation, and (ii) W’s application for further injunctive relief in relation to the confidentiality of information and documents generated in the course of these proceedings should be capable of resolution between the parties as a result of this judgment. If required to deal with them, I shall but I would encourage further discussion between the parties’ solicitors as to the way forward.162.That is my judgment.Order accordingly1 The respondent had independently acquired a valuation of the B Ltd shares from KPMG which had been exhibited to one of her written statements.2 [2/338]3 [2/339]4 Zinc Ltd and W’s interest, or lack of interest, in the company had occupied a significant amount of time during the 2015 proceedings and the oral evidence which I heard at the first set-aside hearing.5 [2/341].6 [2/347]7 my addition8 [2/361]9 [2/367]10 Those liabilities including substantial fees outstanding to her former solicitors and a loan advanced by Mr C, her former fiancé, which had enabled her to purchase a leasehold extension in respect of her London flat.11 Lord Wilson’s judgment in Gohil (handed down on 14 October 2015) makes specific reference to the (then) ongoing deliberations of the Family Procedure Rule Committee in this context. His Lordship spoke of their remit as being the formulation of “a clear procedure for those who aspire to set aside financial orders made by courts at every level” (see para 18). The Supreme Court was provided with a copy of the minutes of the meeting of that committee dated 20 April 2015. The recommendations of its sub-group (the “Setting Aside Working Party”) were considered and specifically endorsed by Lord Wilson: see para 18(d).12 Wenlock v Moloney [1965] 1 WLR 1238 (CA); Ministry of Defence v AB [2010] EWCA Civ 1317; Read v Eastern Counties Leather Group Limited [2022] EWHC 31 (Ch) 58 citing Potgieter v Village [2021] EW Misc (18) 45.13 There is no requirement under Guernsey law to register or record information about ultimate beneficial ownership.14 Her former matrimonial solicitors15 This is a reference to my pre-trial case management order dated 20 July 2016 which required H in advance of the hearing to set out in writing whether he was challenging such sale as a transaction which was not bona fides. The deadline for a clear statement of his position was 20 October 2016.16 “The current value of these shares is not important to this disposal hearing.” [emphasis provided by Mr Yates][2/37]17 [2/187]18 [2/152]19 Lord Stevens of Kirkwhelpington, former Metropolitan Police Commissioner and Chairman of B Ltd’s board of directors since 201120 Professor Kay, visiting professor at the London School of Economics and Fellow of St John’s College, Oxford and a member of B Ltd’s main board since 2012 21 OS v DS (Oral disclosure: Preliminary hearing) [2004] EWHC 2376 (Fam) per Coleridge J22 [1/261]23 [1/230]