Case No. FD11D02580

41.On 16 December 2021, H issued his current application to set aside the 2016 consent order. He made his application pursuant to s. 31F(6) of the Matrimonial and Family Proceedings Act 1984 and FPR 2010 r. 9.9A. He sought a rehearing of the parties’ financial remedy claims on the basis that, in relation to the sale of her shares in B Ltd, W had fraudulently misrepresented the facts and/or had deliberately failed to disclose the true facts to him and the court.42.That application was preceded by a letter before action sent to W on 8 October 2021. As H accepts, that letter was written as a summary of the information relied on as extracted from “the prima facie evidence available to me on the basis of the limited information and documentation now publicly available”. W responded to that letter on 10 November 2021 but its contents were not satisfactory to H in terms of the answers it provided.43.The strike-out application with which I have been dealing was issued by W on 25 February this year. The basis of the relief sought was that his renewed set-aside application was an abuse of process. On 29 March 2022 at a preliminary hearing, I heard extensive submissions from counsel on the way forward given that this was a second set aside application which was being advanced from the foot of allegations based on substantially the same case which was being advanced in the first set-aside hearing. In terms of active case management, and having conducted a provisional evaluation of the issues, I directed that the strike-out application should proceed as a preliminary issue. In taking that course, I had very much in mind the overriding objective and the interests of cost and proportionality. Whilst Mr Glaser QC was contending for a two-day time estimate, I agreed with Mr Elliott QC that, with time allowed for judicial reading and judgment, three days was a more realistic time estimate. Notwithstanding the fact that this was intended to be an abbreviated hearing, that time was required to provide the court with an opportunity to consider the extent to which the statement of case disclosed reasonable grounds for bringing or defending the set-aside application and/or established an abuse of the court’s process. As matters turned out, we did not conclude the necessary review of the evidence and submissions until late in the third day which is why I was obliged to reserve judgment in this matter.44.Since the directions hearing in March this year, H has sought further disclosure from W in the form of a written questionnaire. The focus of that further enquiry is the transaction regarding the sale of her shares in B Ltd to MP in June 2016. At about the same time, he sought release from the non-disclosure undertakings which were recorded in the 2016 consent order. He claimed that new evidence had emerged which, in conjunction with the other evidence available to the parties and the court in 2016, showed that W’s assurance to the court as recorded in Recital 8(2) of the order was false. He wished to use “particulars, information and documents” disclosed within the proceedings to date to “investigate the issues in the case and for that purpose to speak with potential witnesses and other sources of information”. That application remains extant. H is currently bound by the undertakings he gave in the 2016 consent order. W has her own application before the court in relation to confidentiality. It came as a response to information revealed in solicitors’ correspondence that H may have already disclosed information confidential to these proceedings to various third parties unconnected to this litigation.45.In her written statement dated 25 February 2022, W responds to the allegations which are now made in relation to both her interest (or lack thereof) in MP and the sale of her 162,000 shares in B Ltd. She denies that she has any interest in MP and/or that this entity is a nominee company holding assets on her behalf.46.I shall come to the case pleaded in the Particulars of Claim shortly. In order to give that case context, I need to return briefly to developments surrounding the B Ltd shares in the five or six years since the 2016 consent order was approved.(v)The intervening years: 2016 to 202247.As W made clear to the court during the November 2016 hearing, it had been her intention to walk away from further involvement with B Ltd in the event that H retained an equity stake in the company. Once it became clear during the negotiations that he was prepared to relinquish his shares as part of the consideration for the lump sum payment he was to receive, the landscape looked very different. Mr Glaser made it quite clear at the 2016 hearing that, in these new circumstances, his client would continue her involvement with the company. As I made clear, my expectation was that the company would in due course provide the vehicle for the future generation of wealth and that any consequent uplift in the value of the shares would be for her benefit, and hers alone. She had tendered her resignation to the Board in the summer of 2016. That resignation, and the terms of her departure, remained matters for agreement at the time of the November 2016 hearing. Her written evidence to the court in her section 25 statement prepared a month before that hearing was to the effect that, with no immediate successor in prospect, the Board had asked her to stay on as acting CEO until the position had been resolved. Following the conclusion of the 2016 hearing and the absence of any further involvement of H in the company, W withdrew her notice of resignation. Her position at that stage was very different from what it had been following the conclusion of the 2012 proceedings. Her shareholding in the company was reduced to a small minority holding represented by the shares she acquired from H as a result of the 2016 consent order.48.She accepts that, from the latter part of 2016 to 2018, she rebuilt her shareholding in B Ltd such that, by May 2018, she held 151,400 shares. That much is borne out by the material which has been put before the court. She had not completely restored her original stake in the company as represented by the 162,000 shares (including her original Founder’s shares) which, on her case, had been sold in June 2016 to repay her debts10.(vi)The acquisition of the shares in B Ltd by BT Ltd49.On 30 May 2018, the entire share capital in B Ltd was acquired by a company to which I shall refer in this judgment as “BT Limited”. That company had been incorporated on 26 May 2017. The shares were purchased at a price of £8.07 per share giving W’s shares a value of £1,221,798.50.BT Ltd did not exist as an entity at the time of the 2016 consent order. It was incorporated more than six months after that order implemented a clean break between these parties. Initially W was registered as the sole shareholder but the documents before the court demonstrate that other entities and individuals thereafter subscribed for shares. The electronic filing at Companies House dated 8 June 2019 reveals the existence of 13 separate shareholders including W, her sister, Odey, MP, Zinc and an entity to which I will refer as “R”. The names of other corporate investors in the list of shareholders have not featured before in this litigation and there is no allegation that they are in any way connected with W outside their status as investors whom she may, or may not, have introduced to the business. W continues to maintain that she has no interest in MP and never has had. The sale of her original 162,000 shares in B Ltd was, on her case, an arm’s-length transaction to a new investor. Having made that investment and become what she describes as “a trusted client of [B Ltd’s]”, they became part of the circle of “friends and family” investors.51.Three years later, in July 2021, BT Ltd was floated on AIM. I have a copy of the AIM Admission Document within the bundle of material which is before the court. That includes a full list of the selling shareholders and their registered business addresses, including W.52.Much as I anticipated in 2016, it appears that W’s ongoing commercial endeavours over the years have indeed been successful. That success is perhaps reflected in no small part by the fact that she has since acquired an unencumbered property in central London which is said to be worth £7 million. I doubt that fact has been lost on H despite the fact that he is independently wealthy in his own right and owns, or has owned, several valuable properties both in this jurisdiction and elsewhere, including the South of France.53.He comes back to this court now and seeks to persuade the court that the 2016 consent order should be set aside on the basis that the financial remedy claims of both parties are once again live issues to be redetermined by the court on the basis of a fresh adjudication.54.Before turning to the case which is now being advanced by H against W, I propose to address the legal framework for this current set aside application.