Case No. FD11D02580

(i)Falsity123.In every instance where W has produced documentary evidence (third party or her own) to substantiate her defence of the set aside application, Mr Elliott QC seeks to deny its authenticity on behalf of his client. He submits that the failure of the various Guernsey entities to respond to written enquiries from H’s solicitors says much and is consistent with their theory that W is a long-standing client of FNB which in all likelihood has been managing her affairs for over 20 years. The existence of ‘MP’, on his client’s case, is all part of an elaborate construct which she has put in place to conceal the fact that the sale transaction relating to her shares in B Ltd to the Asia LLC was a non-existent “fairy tale”. On his case there had been no sale at all. The shares had in fact been acquired by MP (Guernsey). Either (i) the transaction with MP (Asia) LLC was a sham, there was no such entity, and the shares went directly into the corporate ownership of the Guernsey entity or (ii) if the Asia LLC did exist and the stock transfer form was genuine, it was no more than a route to deliver beneficial ownership to the Guernsey company of which W was, and is, the ultimate beneficial owner.124.The second limb of Mr Elliott QC’s attack on W’s case is based on the inherent improbability of a series of “coincidences” which flow from her account of events.125.A company search reveals that FNB Trustees formerly operated under the ‘Ansbacher’ corporate ‘flag’, an organisation with which W has had previous dealings. The directors of FNB are also directors of R and MP. Next, on Mr Elliott QC’s case, there is the coincidence in relation to timing. At a time when she was alleging she was under significant financial pressure as a result of pressing debts, W’s case is that she approached MP on 16 June 2016, one month after its incorporation. Mr Elliott QC submits that the purchaser on her case would have had no reason to form the purchasing vehicle a month before that approach.126.He further submits that the previous focus on Zinc as an entity in 2016 has been regenerated by further company searches which his client has undertaken. With FNB Trustees now emerging as part of the ‘pattern’ which underpins H’s suspicion that his former wife is probably the beneficial owner of MP, it warrants forensic re-focus. It is now his case, as I understand the position, that, whether or not a BVI-registered company and thus outside the ‘Guernsey’ corporate ‘fold’, Zinc should be considered as being administered for W’s benefit by FNB Trustees.127.Of W’s contention that a search of the official Guernsey Companies Registry reveals that there are some 150 companies registered to the La Plaiderie address in Guernsey, the vast majority of which are wholly unconnected to this litigation, Mr Elliott QC says this: “As a place of business of a corporate administrator, this is unsurprising.” He submits that if, as she contends in paragraphs 15 and 16 of her statement dated 25 February 2022, the corporate and other investors in B Ltd and BT became “corporate friends and family”, the onus lies on her to ask them why they were all incorporated in Guernsey. All of these matters, he submits, permit the court to draw an appropriate adverse inference as part of assessing the strength and merits of H’s case.(ii)Materiality128.In relation to the second limb of Mr Elliott QC’s submissions, materiality only becomes a relevant consideration in the event that H is able to establish that the “assurance” given by W in 2016 that she had sold her shares in B Ltd was false. Contrary to what was expressed in Mr Yates’ opening note prepared for the five-day hearing16, Mr Elliott QC submits that the value of the shares could only be determined at a final hearing.(iii)Delay129.Mr Elliott QC rejects any suggestion that his client’s current case is merely a repetition of the allegations he was making in 2016 and/or that he has delayed in bringing this second set aside application until just after the very successful IPO of W’s most recent venture, BT, in July 2021. It is his case that it was the IPO and his discovery that MP (about which he had known since before 2016) had a registered Guernsey address which provided the platform for his current application. His letter before action was written on 8 October 2021 as soon as he had had a proper opportunity to seek legal advice.130.Thus, in substance, Mr Elliott QC invites me to find that H has established a strong case now for set aside on the basis of all the evidence currently before the court. He maintains that the current application is based to a significant extent on new evidence which has been advanced without delay and that his client was not in a position to advance that case in 2016.(iv)Abuse of process131.Mr Elliott QC submits that the authorities do not provide the court with a universal test which can be encapsulated in a simple formulation. The court must ask: in all the circumstances which are now known, does the new claim amount to an abuse of process ? That question has to be answered against any accumulating body of evidence which is put before the court. He suggests a two-stage process: (i) should the allegations have been pressed on the first occasion ? If the answer is no, (ii) is the body of evidence now before the court such that a claim is justified ? He urges me not to look in isolation at the “new” evidence and ask whether that evidence is of itself decisive. That course, he submits, risks jeopardising a strong case in circumstances where it was reasonable not to proceed on a prior occasion. He maintains on behalf of his client that H had no reason in 2016 to conduct a search of the Guernsey Register or investigate the bona fides of the US company in which W said she was in negotiation for the sale of her shares in B Ltd. Should the court take the view that there is some significance in the weight of the “new” evidence and/or H’s failure to prosecute the matter in 2016, I should adopt the approach articulated by Lord Sumption in para 66 of Takhar that “reasonable diligence is not required in a case of this kind”.