HT-2022-000311 & HT-2022-000254 - [2024] EWHC 3179 (TCC)

The defendants’ Defence was filed on 28 November 2022. It was a lengthy and detailed Defence which was drafted by counsel. The defendants denied any liability. Amongst other things, the Defence contended that:

In July 2022, the claimants became concerned that the defendants were about to sell the new rooftop flats and dissipate the sale proceeds. The claimants obtained a freezing injunction without notice against the defendants and a company called Click Above Limited. That injunction was continued by O’Farrell J on 15 August 2022 against Click St Andrews. Thereafter, the claimants commenced proceedings on 31 August 2022.

For the purposes of this judgment, it is not necessary for me to set out the matters on which I was addressed in relation to the liquidation of Click St Andrews. However, the Case Management Conference was heard in May 2023 against the background of a proposed liquidation and an unless order was made against Click St Andrews in respect of adverse costs orders. In breach of that Order, those amounts were not paid. Nor did the defendants comply with the case management directions.

On 19 May 2023 a resolution was passed for the company to be wound up voluntarily.

The net result of these matters was as follows. Firstly, as a result of the failure to comply with the unless order, Click St Andrews was debarred from participating in the proceedings. By e-mail dated 5 February 2024, the liquidators also confirmed that they would not be defending the claim and would not be represented at trial.

Despite this, it was properly recognised by the claimants that they would still have to prove their case against Click St Andrews rather than simply entering judgment. Click Group Holdings was still able to participate in the trial and did so, represented by Aaron Emmett who had been a director of both defendants but had resigned as a director of Click Group Holdings in August 2023. At the Pre-Trial Review on 19 January 2024, the court made an order that, if Click Group Holdings intended to be represented at trial by Mr Emmett or anyone other than a legal representative, the court required evidence of a board resolution permitting that person to represent the company. A resolution was forthcoming shortly before trial signed by a director, Anita Bandak. Since the trial, the claimants have raised with the court their concerns that, according to the Companies House website, Ms Bandak had ceased to be a director of Click Group Holdings prior to the authorisation to Mr Emmett to act. The claimants recognise that that that may be an error in the date registered at Companies House. The issue has not yet been resolved. However, for the purposes of this judgment, it seems to me the obvious and practical course that I should take account of any submissions made by, and cross-examination conducted by, Mr Emmett in the course of the trial.

Neither of the defendants had served any witness evidence and no witnesses were called for the defendants at trial. Perhaps inevitably, Mr Emmett on occasion strayed into giving evidence. Where that happened, I have regard to the fact that any such evidence was not properly admissible and, in any case, was not given under oath or affirmation.

In the absence of legal representation, Mr Emmett relied heavily at trial on the legal arguments that had been advanced by counsel in the Defence. He placed particular weight on the fact that the Defence had been drafted by counsel who is now leading counsel. It is, of course, the case that counsel should only advance arguments that are legally sustainable but they remain that – legal arguments for the consideration of the court.

Before Click Group Holdings ceased to be represented, an expert in the field of architecture had been instructed, Joanne Williams of CCI, and she had agreed a joint statement with the claimants’ expert, Alastair Ferguson of Hawkins Associates. Since Mr Ferguson was called to give evidence, I have regard to that Joint Statement. No expert reports in any discipline were served on behalf of the defendants and no expert evidence adduced by them at trial.