Yukong Line Ltd (SK Shipping Limited) v Rendsburg Investments Corporation & Ors [2000] EWCA Civ 358

EWCA-Civ

Yukong Line Ltd (SK Shipping Limited) v Rendsburg Investments Corporation & Ors

[2000] EWCA Civ 358 · 2000-12-21

[1]This is an appeal by the third defendant ("Mr Yamvrias) against paragraphs 1 and 2 of an order made by Aikens J, sealed on 9 th December 1999 whereby he dismissed Mr Yamvrias' application by summons dated 14 th July 1998 for an inquiry as to damages which Mr Yamvrias may have suffered as a result of injunctive relief obtained by the claimant ("Yukong") pursuant to its cross-undertaking in damages given to the court when Yukong obtained an injunction on 17 th October 1997 ordering the first defendant ("Rendsburg") to pay the sum of US$ 244,965 into court and further ordered the continuation of a freezing order previously made against Mr Yamvrias in the sum of US$ 245,000 until such payment-in or until further order ("the October 1997 Order"). Aikens J also ordered that Mr Yamvrias pay the claimant's costs of the application before him.

[2]The matter has a complicated procedural history which it is necessary to set out in order fully to understand and consider the arguments. THE PROCEDURAL HISTORY

[3]Yukong originally claimed against Rendsburg only. Rendsburg, as disponent owners of the vessel called "Rialto" had entered into a three year time charter for the vessel in July 1995, repudiating it before the vessel was due to be delivered under the charter in early 1996. The repudiation took the form of a telex of 23rd January 1996 sent by Rendsburg's broker, Marcan Shipping (London) Limited ("Marcan"), of which Mr Yamvrias is a director, which telex stated that Rendsburg was `unable' to perform the charterparty. Following Rendsburg's failure to respond to requests confirming that it would perform the charterparty, Yukong accepted Rendsburg's repudiation by a telex of 1 st February 1996 and terminated the charterparty.

[4]On 2 nd February 1996 Yukong issued a writ claiming damages of over US$ 2.3 million for wrongful repudiation of the charterparty and, on the same date, obtained Mareva relief against Rendsburg from Colman J who ordered that Rendsburg must not remove assets from England and Wales totalling US$ 3.35 million. The usual cross-undertaking in damages was given by Yukong.

[5]On 7 th June 1996, Waller J varied the form of the original Mareva order against Rendsburg and granted Mareva relief against Mr Yamvrias, on giving leave to Yukong to join him as third defendant in the action. The amended Points of Claim set out two claims against Mr Yamvrias personally:(i) that in signing the charterparty he had acted as undisclosed principal of Rendsburg so that he incurred personal liability under the charter and was thus liable in damages for its repudiation;

(ii) that Rendsburg, the second defendant and Mr Yamvrias had together conspired to injure Yukong by removing funds in the amount of US$ 245,614.29 from an account of Rendsburg with Den Norske Bank ("DNB") shortly before Rendsburg's telex of repudiation. US$ 164,799 of the funds were transferred to the second defendants ("Ladidi") which Mr Yamvrias also controlled. It was asserted that Mr Yamvrias had put the funds to his own use and that the predominant purpose of such removal was to ensure that there would be no funds against which Yukong could enforce a judgement against Rendsburg. It was also alleged that the conspiracy was to remove the funds by `unlawful means' namely breach of Mr Yamvrias fiduciary duty as a `shadow director' of Rendsburg.

[6]The amended form of Mareva order made against Rendsburg reduced the sum enjoined to US$ 2.79 million and the further Mareva order against Mr Yamvrias enjoined him from removing assets up to US$ 2.79 million from the jurisdiction. He was also ordered to disclose information relating to his assets. The cross-undertaking in damages was in the usual form. Yukong as plaintiff undertook to the court:

"If the Court later finds this Order has caused loss to the Defendants and decides that the Defendants should be compensated for that loss, the Plaintiffs will comply with any Order the court may make"

[7]The fourth defendant ("VAL") and DNB were added as parties on 20 th June 1996 and were also made the subject of Mareva relief.

[8]On 27 th June 1996, Moore-Bick J tried a preliminary issue as between Yukong and Rendsburg as to whether Rendsburg's actions amounted to a repudiatory breach of the charterparty. He held that Rendsburg had repudiated the charterparty and that Yukong had not subsequently confirmed it. Yukong did not go on to obtain a judgment for damages against Rendsburg as it wished to pursue its claims against Mr Yamvrias before deciding whether to attempt enforcement against Rendsburg.

[9]The trial of the claims against Mr Yamvrias took place before Toulson J in July 1997. By a judgment dated 23 rd September 1997, reported at

[1998] 1 Lloyd's Rep 322

, Toulson J dismissed the claims against Mr Yamvrias. He held that Mr Yamvrias had signed the charterparty simply as a director of the brokers, Marcan, and not as the undisclosed principal of Rendsburg. So far as the conspiracy claim was concerned, he held that at all relevant times Mr Yamvrias exercised control over Rendsburg and Ladidi, he being the `alter ego' of both companies in which the ultimate beneficial interest belonged to him and his wife (and possibly his family). He also held there was a conspiracy to transfer Rendsburg's credit balance with the DNB for the purpose of putting assets beyond the reach of Yukong's litigation which seemed likely to arise. However, he went on to hold that the predominant purpose of the conspiracy was not to injure Yukong but to promote Mr Yamvrias' own interests and that, although there had been a conspiracy by unlawful means to which Mr Yamvrias was a party, in that he had ordered the transfer of the funds of Rendsburg in breach of his fiduciary duties to that company, this did not found an action for conspiracy by Yukong, to whom Mr Yamvrias owed no direct fiduciary duty.

[10]In the course of his judgment, Toulson J made various findings against Mr Yamvrias, who had elected not to give evidence at the trial despite the fact that, as Toulson J put it, `a large number of questions cried out to be answered by him'. Toulson J inferred that the reason why he did not do so was that:

"Either he was unwilling to perjure himself in the witness box and believed that if he were to tell the truth it would be detrimental to his cause, or else he did not believe that his case would withstand his being cross-examined on it."

[11]Finally, Toulson J suggested that, as Mr Yamvrias controlled Rendsburg and had organised disposal of its funds for his own benefit:

".... he would presumably have been in a position on behalf of the company to get back from himself that which he had caused to be paid for his benefit" and went on to observe that: "... in an appropriate case it might be within the scope of the court's Mareva jurisdiction to require a company, and its only effective officer, to do just that"

. Subsequently, on 23 rd September 1997, when hearing argument as to the costs of the action and the form of order to be made, Toulson J refused to make an order for costs in favour of Mr Yamvrias on the grounds that his conduct had been:

"... disreputable and devious, not only in relation to the events which gave rise to Yukong's claim, but, more significantly, in the action itself"

. On 24 th September 1997 he ordered that the freezing order granted against Mr Yamvrias on 7 th June 1996 remain in force for the reduced sum of US$ 245,000 pending a further application by the claimant.

[12]By summons dated 29 th September 1997, Yukong applied for the following relief:

"1. The Order dated 2 February 1996 .... be varied so that the First Defendant and the Third Defendant do restore to the First Defendant, at a specifically designated bank account in London ... the sum of US$ 245,614.29, or alternatively US$ 164,799 removed from the First Defendant's bank account in London in January 1996; and 2. There be no inquiry as to damages to the third Defendant."

[13]On 1 st October 1997 Toulson J heard and gave judgment on that application. So far as Rendsburg was concerned, he was referred to a number of authorities on the court's Mareva jurisdiction and held that he had jurisdiction to order a company (Rendsburg) to return money to its own bank account and that he could also order that this be done by its director and controlling mind, Mr Yamvrias.

[14]Toulson J was also asked to continue the Mareva order against Mr Yamvrias personally, an application which had found no place in the summons of 29 th September. In that respect he stated:

"Finally there is the matter of the Mareva order against Mr Yamvrias and his possible application for an inquiry as to damages against Yukong. As to the injunction itself, I have not had argument about this, but as at present advised, it seems to me that if a court had known the full facts now known at the time the original order was made, a Mareva order would have been made against Mr Yamvrias in the sum of US$ 245,000 as relief ancillary to Yukong's claim against Rendsburg, and that accordingly such an order should remain in force until repayment of that sum into the designated account or further order"

. The October 1997 order which followed was drawn in a form subsequently agreed between counsel and perfected on that date to embody the judge's decision. So far as relevant, its terms were as follows: " Transfer of Monies into Jurisdiction 1. The first defendant do by the third defendant, no later than twenty-eight days from service of this order on the first defendant pay the sum of US$ 244,965 into court at the Royal Courts of Justice, London, England. 2. The sum paid into court pursuant to the order in paragraph 1 hereinabove shall remain in court until further order. Plaintiff's Undertaking to Enter Judgment Against First Defendant 3. Within forty-eight hours of the payment into court of the sum referred to in paragraph 1 above, the plaintiff undertakes to enter judgment against the first defendant in the action. Continuation of Injunction Against First and Third Defendants 4. Save as aforesaid, the injunction granted by Mr Justice Colman on 2 nd February 1996, as varied by Mr Justice Waller on 7 th June 1996, restraining the first defendant [i.e. Rendsburg] from disposing of or otherwise dealing with or diminishing the assets held in England and Wales whether in the name of the first defendant, whether or not solely or jointly owned up to a value of US$ 2,790,000 be continued until further order. 5. Save as aforesaid, the injunction granted by Mr Justice Colman on 2 nd February 1996 [as varied by Mr Justice Waller on 7 th June 1996] and as further varied by Mr Justice Toulson on 24 th September 1997, restraining the third defendant [i.e. Mr Yamvrias] from removing from England or Wales or in any way disposing of dealing with or diminishing the value of any assets in the jurisdiction up to the value of US$ 245,000, be continued until paragraph 1 has been complied with or until further order .... Liberty to Apply 8. The first and third defendants to have liberty to apply to the court within twenty-eight days of the service of this order on the first defendant to set aside or vary the terms of the order.

[15]It is not in dispute that, because the October 1997 order was a further variation of that of Colman J and Waller J, the cross-undertaking in damages originally given by Yukong remained effective so far as Mr Yamvrias was concerned.

[16]On 13 th November 1997, Mr Yamvrias applied to set aside the order against him or to vary it so that(i) the requirement that Rendsburg should pay into court the sum of US$ 244,965 `by or through' Mr Yamvrias and

(ii) the `restraining' order against him should both be lifted unreservedly'. However, Mr Yamvrias did not serve any evidence in support of the application punctually or, following an order that he do so, by 9 th December 1997. On 18 th December 1997 a consent order was made dismissing Mr Yamvrias summons with costs. Rendsburg made no payment into court. Mr Yamvrias did not appeal against the October 1997 order.

[17]By notice of motion dated 1 st April 1998, Yukong applied for leave to issue a writ of sequestration against Mr Yamvrias' assets on the grounds that he was in breach of paragraph 1 of the October 1997 order in that he had not procured payment into court of the sum of US$ 244,965. On 14 th May 1998, Tuckey J gave leave to issue the writ of sequestration against Mr Yamvrias. On 6 th June 1998 the Court of Appeal granted permission to appeal to Mr Yamvrias. The argument advanced for Mr Yamvrias was that leave to issue against the assets of Mr Yamvrias should not have been given because paragraph 1 of the order of Toulson J to pay money into a court was on its proper construction only made against Rendsburg and not against Mr Yamvrias personally. Accordingly he was not personally in breach of the order when the money was not paid in. In granting Mr Yamvrias' application for leave to appeal, Waller LJ expressed anxiety about the form of the order made against Mr Yamvrias. He said: "What he [Toulson J] was recognising was that he was attempting to take, in effect, a short cut in relation to the enforcement of a judgment against Rendsburg he having found that the personal defendant [i.e. Mr Yamvrias] was not liable".

[18]The substantive appeal against the order of Tuckey J was heard on 23 rd June 1998. The appeal was allowed on the basis that paragraph 1 of the October 1997 Order was an order directed only to Rendsburg and the funds of Rendsburg and imposed no personal liability upon Mr Yamvrias. In the course of his leading judgment, Nourse LJ echoed the anxiety of Waller LJ as to whether the court had jurisdiction to make any order for payment against Mr Yamvrias personally. However, he observed that, as there had been no argument on the point, he would express no concluded view on that issue.

[19]On 14 th July 1998 Mr Yamvrias applied by summons for orders that the Mareva relief granted under paragraph 5 of the October 1997 order should be discharged and that there should be an inquiry as to damages suffered by Mr Yamvrias as a result of its being granted. On 10 th August 1998, after correspondence between solicitors, the injunction was discharged by consent, but without prejudice to the question of whether Mr Yamvrias was entitled to an inquiry as to damages.

[20]Mr Yamvrias' summons in that regard was due to be heard before Timothy Walker J on 2 nd October 1998, by which date he had served no evidence in support. On that date Timothy Walker J refused an application for an adjournment and dismissed the summons However, on 17 th June 1999, this court (Waller and Gibson LJJ) allowed an appeal against that order and ordered that Mr Yamvrias' summons of 14 th July 1998 should be restored for hearing before the Commercial Court.

[21]The hearing of the summons took place before Aikens J on 22nd October 1999, his reserved judgment being delivered on 9 th November 1999. THE JUDGMENT OF AIKENS J

[22]Having reviewed the principles on which a court will grant an inquiry as to damages in terms as to which no point has been taken in this appeal, Aikens J identified the issues raised in argument as being:(1) Was the injunction against Mr Yamvrias "improperly obtained?" He identified two sub-issues as having been argued under this head. The first related to the injunction against Mr Yamvrias initially granted by Waller J restraining him from disposing of assets of US$ 2.7 million until trial or further order; second, the October 1997 Order of Toulson J restraining Mr Yamvrias from disposing of assets of US$ 244,965. For reasons which have not been challenged before us, the judge concluded he did not need to consider whether or not the original injunction of Waller J had been improperly obtained; thus we have not been troubled with argument on that score.

(2) Had Mr Yamvrias adduced credible evidence of loss or damage to himself which was caused by the grant of either injunction? Again, as a result of unchallenged findings by the judge in relation to the original injunction, this court has been concerned only with the question of damage arising under the October 1997 Order.

(3) Whether Mr Yamvrias' conduct, both up to the trial and before Toulson J and subsequently, was such as to deprive him of the right to obtain an inquiry as to damages.

[23]As to the first issue, Aikens J referred to the decisions in SCF Finance Co. Limited -v- Masri

[1985] 1 WLR 876

and TSB Private bank International SA -v- Chabra

[1992] 1 WLR 231

and held that the injunction was properly granted on the basis that:

"It was ancillary and incidental to the order against Rendsburg that it should pay into court the assets of US$ 244,965 that had been removed from DNB by Mr Yamvrias' action". (para 31 of the judgment) In this connection he stated: "28 Toulson J .. concluded, in the course of dealing with the claims against Mr Yamvrias, that he had controlled Rendsburg and had been instrumental in removing Rendsburg's assets from its account with DNB. Those assets had found their way into accounts effectively controlled by Mr Yamvrias and had then disappeared.... 29. It is clear, in my view, that Toulson J had concluded, both in his judgment delivered on 23 September 1997 and in that given on 1 October 1997 (although he did not hear arguments specifically on this point at any stage) that Mr Yamvrias was probably controlling assets (i.e. the US$ 244,965) that were actually those of Rendsburg. When he heard argument on 1 October 1997 he was referred to the Chabra case specifically: see transcript page 2 line 9 . In deciding to impose the injunction restraining Mr Yamvrias from disposing of assets of up to US$ 245,000 he said at transcript page 6 line 25 : ".... it seems to me that if a court had known the full facts now known at the time the original order was made, a Mareva order would have been made against Mr Yamvrias in the sum of US$ 245,000 as relief ancillary to Yukong's claim agaisnt Rendsburg and that accordingly such an order should remain in force until repayment of that sum into the designated account or further order". 30. I am therefore sure that Toulson J was exercising a Chabra type of jurisdiction when imposing the Mareva injunction against Mr Yamvrias. Mr Yamvrias did not pursue his right to apply to set aside that order, as he was entitled to do by paragraph 8 of the order of 17 th October 1997. Nor was there any appeal from the order. When the Court of Appeal decided to reverse Tuckey J's order permitting the issue of a Writ of Sequestration against Yamvrias, their comments doubting whether Toulson J had jurisdiction to make the Mareva order against Mr Yamvrias were made without hearing argument on the point: see transcript of judgment of 23 June 1998: page 8B . I have heard argument on the issue and I have concluded that Toulson J did have jurisdiction to make the order set out in paragraph 5 of 17 th October 1997. Further, as the "freezing order" of Toulson J has not been successfully challenged, I am entitled to hold that the order was properly made."

[24]As to the second issue i.e. the damage alleged, the judge had to deal with two projects identified in a witness statement by Mr Soutar, Mr Yamvrias' solicitor, in which it was stated that Mr Yamvrias was `unable to participate' as a result of the October Order. The first was the purchase and bare boat chartering up to four `Panamax' vessels, called the `Ever' Vessels Project. That involved the setting up of four ship owning companies, each of which would be wholly owned by a company itself to be jointly owned by Marcan (of which Mr Yamvrias was a director) and a company called Veritas owned and/or controlled by a Captain Skarvelis. The second project was a project for Contracts of Affreightment for carriage of goods from Argentina to Europe, again involving Veritas and Captain Skarvelis. It was a scheme to charter Panamax vessels to fulfil contracts which Veritas had concluded to carry cargoes principally from Argentina.

[25]In relation to the `Ever' Vessels project, on the evidence before the judge it was not Mr Yamvrias personally but Marcan, as broker to Rendsburg which had suffered the damage claimed. For a variety of reasons given by the judge, against which there is no appeal, the claim for loss in respect of the 'Ever' Vessels Project is not pursued.

[26]So far as the Contracts of Affreightment scheme was concerned, I shall turn to it in more detail below, when considering an application by Mr Yamvrias to adduce further evidence in relation to it. Suffice it to say that Aikens J found there was no credible evidence of loss to Mr Yamvrias in the manner put forward in the affidavits of Mr Soutar on his behalf.

[27]Finally, so far as the conduct of Mr Yamvrias throughout the proceedings was concerned, the judge considered(i) the findings of Toulson J that Mr Yamvrias had been instrumental in dissipating Rendsburg's assets so as to make it "judgment proof"

(ii) the failure of Mr Yamvrias to explain his actions at the trial before Toulson J by electing not to give evidence

(iii) what Toulson J had called Mr Yamvrias' dissembling, in relation to his cross-examination on assets, and as to who owned Rendsburg and Ladidi

(iv) the fact that Mr Yamvrias had delayed in applying to enforce the cross undertaking in damages for so long. The judge stated that he shared the view of Toulson J that Mr Yamvrias' conduct in the course of the case had been disreputable and devious. However, he said:

"But it has not been so shocking that, had I concluded that he had a credible claim to damages, he should, nonetheless, be debarred from pursuing it. However, I have taken the conduct of Mr Yamvrias into account when assessing the credibility of the evidence before me on whether he has actually suffered any loss as a result of the imposition of either injunction. Because of his initial disreputable and devious behaviour and his failure to explain himself in the witness box at the trial and because he has not been now prepared to put forward his own witness statement supported with a belief as to its truth, I have had to look very carefully at the evidence put forward on his behalf by Mr Soutar. I am sure Mr Soutar took careful instructions and I am not doubting his honesty or credibility. But I am not prepared to accept as credible evidence any assertion of loss by Mr Yamvrias that is made through Mr Soutar, unless there is some other material that supports it. For the reasons that I have given above, none of the documentary material provides credible evidence that Mr Yamvrias has sustained damage (of the kind asserted Mr Soutar's first witness statement) as a result of either injunction."

THE GROUNDS OF APPEAL

[28]The grounds of appeal as argued before us by Mr Steven Gee QC for Mr Yamvrias related to two broad aspects of the judge's decision. First, the `propriety' of the freezing order granted under paragraph 5 of the October 1997 Order; second, the judge's finding that Mr Yamvrias had advanced no credible evidence of loss as the result of that freezing order.

[29]As to the first ground, Mr Gee submitted that the injunction was improperly granted by Toulson J by way of a `shortcut' method aimed at ensuring that one person (Mr Yamvrias), against whom no cause of action had been established by Yukong, nonetheless pay to Yukong the debts of another person (Rendsburg) against whom liability had been established. That being so, Mr Gee submitted that the order breached the principle that a freezing order `must be incidental to and dependent on the enforcement of a substantial right which usually, though not invariably, takes the shape of a cause of action': see Channel Tunnel Group Limited -v- Balfour Beatty Construction Limited

[1993] AC 334

per Lord Mustill at 362.

[30]In this connection, Mr Gee acknowledged that the court has jurisdiction to grant a freezing order over someone against whom no direct cause of action lies, provided that the claim is `ancillary and incidental' to a cause of action the subject of proceedings against a defendant in respect of whom a cause of action is established; see TSB -v- Chabra (above) per Mummery LJ at 241H-242A; Mercantile Group -v- Aiyela

[1994] QB 366

per Hoffman LJ at 376C-E, Steyn LJ at 376F-377B and Sir Thomas Bingham MR at 377C. However, Mr Gee submitted that the judge did not exercise, or at any rate should not be treated as having exercised, a `Chabra-type' jurisdiction in this case because(i) `the foundation' of the order was not Yukong's cause of action against Rendsburg, but the misconceived view (subsequently held by the Court of Appeal to be incorrect) that there was jurisdiction to make an order against Mr Yamvrias personally to pay money into court under paragraph 1 of the October 1997 order. Mr Gee submitted that this was evident from the provision in paragraph 5 that the freezing order should cease to have effect upon such payment into court.

(ii) Following the decision of the Court of Appeal on 23 rd June 1998 as to the meaning of paragraph 1 of the order, Yukong acknowledged the position in a fax to the solicitors for Mr Yamvrias suggesting that `in the light of the decision of the Court of Appeal' the injunction should be discharged, as it subsequently was.

(iii) The form of the order was in any event inappropriate to a Chabra-type order because it was completely general and indiscriminate in its effect over Mr Yamvrias' assets rather than being aimed simply at the dissipation of the fund of US$ 244,965 said to belong to Rendsburg.

[31]As to the judge's decision that the evidence placed before him was insufficient to warrant an inquiry as to damage, Mr Gee limited his submissions to the damage alleged to have been suffered by Mr Yamvrias under the heading `Contracts of Affreightment' in respect of which the judge held there was no credible evidence of loss. THE RELEVANT LAW Inquiry as to Damages

[32]Whereas the usual practice in respect of interlocutory injunctions is not to order an inquiry into damages on the cross-undertaking until the merits of the action have been finally decided at trial, in cases where a Mareva injunction is involved, a defendant or other party bound in respect of whom the injunction is discharged at any stage may seek, and be granted, an inquiry into damages on the basis that, regardless of the ultimate merits of the action, the injunction was `wrongly granted'. That term is in my view preferable to `improperly obtained', because impropriety seems to me to carry connotations of improper conduct by the applicant, such as non-disclosure of material facts, whereas the term `wrongly granted' covers the far wider circumstances in which the injunction may be discharged and an inquiry ordered. In respect of those wider circumstances it is necessary, for the purposes of the argument in this case, to distinguish between the position where the order is attacked on the grounds that the court lacked jurisdiction to make it and the position where the court makes an order within its jurisdiction but which is subsequently demonstrated or conceded to have been too wide in its scope or unjustified or inappropriate on the facts.

[33]Upon discharge of a Mareva injunction, the court has a discretion whether or not to enforce the undertaking in damages. It may enforce it by a summary award of damages: see Practice Direction (Mareva and Anton Piller Orders: New Forms)

[1994] 4 All ER 52

at 54, paragraph (4) of which requires consideration of such a remedy when the injunction is discharged on its return date. More usually, the court, having exercised its discretion to enforce the undertaking, may order an inquiry as to damages. In appropriate cases it may adjourn the application to the trial or further order, as in Cheltenham & Gloucester Building Society -v- Ricketts

[1993] 1 WLR 1545

. It may decide that the undertaking is not to be enforced. However, if it is established that the injunction was wrongly granted, albeit without fault on the plaintiff's part, the court will ordinarily order an inquiry as to damages in any case where it appears that loss may have been caused as a result.

[34]The question whether the undertaking should be enforced is a separate question from the question whether the injunction should be discharged. The order for an inquiry as to damages is discretionary, such discretion being exercised in accordance with equitable principles, taking into account all the circumstances of the case, but bearing in mind that, since the injunction should not have been obtained, prima facie the plaintiff ought to bear the loss: see Financiera Avenida -v- Shiblaq [1991] The Times 14 th January (CA Civil Division). As observed by James LJ in Graham -v- Campbell (1877) 7 Ch. D. 490 at 494, the undertaking ought to be given effect except under `special circumstances'. Those special circumstances include the conduct of the injunctee at the time the injunction was obtained or later, see per Lord Diplock in F. Hoffmann -v- La Roche & Co AG -v- Secretary of State

[1975] AC 295

at 361. However, whilst the principles referred to above have been enunciated as generally applicable to the exercise of the court's discretion whether or not to order an inquiry as to damages, if the reason for the discharge of the injunction is that the court lacked jurisdiction to make it in the first place, it is difficult to envisage any circumstances in which the court would refuse to order an inquiry as to damages upon some evidence of loss: c.f. Norwest Holst Civil Engineering Limited -v- Polysius Limited (1987) The Times, 23 rd July, where the court held that, regardless of the merits of the substantive claim, the obtaining of Mareva relief had been misconceived in that it was clear that there was no substantial risk of dissipation of assets and the court directed an inquiry even though the merits of the claim had not yet been decided.

[35]So far as evidence of loss is concerned, upon an application for an inquiry, the applicant must adduce some credible evidence that he has suffered loss as the result of the making of the order. The court will not order an inquiry if it appears to be pointless to do so because the intended claim for damage is plainly unsustainable. That may be because it is clear that the order is no more than the factual context for loss which would have been suffered regardless of the granting of the order, or it may equally be clear that the damage is too remote. However, at the stage of exercising its discretion whether to order an inquiry, the court does not ordinarily hear protracted argument on whether the suggested loss will be recoverable. If the defendant shows that he has suffered loss which was prima facie or arguably caused by the order, then the evidential burden of any contention that the relevant loss would have been suffered regardless of the making of the order in practice passes to the defendant and an inquiry will be ordered: see for instance Financiera Avenida SA -v- Shiblaq (above); Tharros Shipping Co Limited -v- Bias Shipping

[1994] 1 Lloyd's Rep 577

[36]The question of what is the appropriate test of `remoteness' in the context of a claim for damages on a cross-undertaking is a point which has not been fully explored in the English cases, as Neill LJ pointed out in the Cheltenham & Gloucester Building Society case (above) at 1552C. He stated that, in exercising its equitable jurisdiction, the court should adopt similar principles to those relevant in a claim for breach of contract, a test adopted by Waller J in the Tharros Shipping case (above). This test has recently been questioned by Jacob J in R -v- Medicines Control Agency ex.p. Smith & Nephew Pharmaceuticals Limited , Ch.D. 26 th March 1999. However, it is not necessary to go into the niceties of that question for the purposes of deciding this appeal. Jurisdiction

[37]It is now settled law that, although the court has no jurisdiction to grant an interlocutory Mareva injunction in favour of a plaintiff who has no good arguable cause of action against a sole defendant, it has power to grant such an injunction against a co-defendant against whom no direct cause of action lies, provided that the claim for the injunction is ancillary and incidental to the plaintiff's cause of action against that co-defendant: see TSB -v- Chabra (above) , a case in which it appeared that assets which beneficially belonged to Mr Chabra were vested in a limited company of which he appeared to be the alter ego. Mummery J stated at

[1992] 1 WLR 240

"If the court has power to make an order against the company, the available evidence points strongly, in my view, to the need for an injunction against it. There is a good arguable case that some of the assets held in its name are the beneficial assets of Mr Chabra either on the basis that the company holds them on trust for or as nominee for him, or on the basis that the company is nothing more than a convenient repository for Mr Chabra's assets. It is therefore, important that any such assets should be available to the plaintiff to satisfy any judgment it may obtain against Mr Chabra. If no injunction ......., there is a real risk that it will dispose of assets so as to defeat the plaintiff's chances of satisfying the judgment that it may obtain. The effect of the company disposing of its assets would also be indirectly to reduce the value of any shareholding which Mr Chabra had and may still have in the company. The disposal would have the direct effect of diminishing the prospects of any assets vested in the company which may be Mr Chabra's beneficial assets, being available in the United Kingdom to meet the plaintiff's judgment"

That decision was subsequently expressly approved by the Court of Appeal in Mercantile Group -v- Aiyela (above) in which Hoffman LJ stated at p. 376:

"In this case, the plaintiffs substantive right is a judgment debt owed by Mr Aiyela. The Mareva injunction against Mrs Aiyela is incidental to and in aid of the enforcement of that right ... TSB Private Bank International S.A. -v- Chabra ... was a case of a pre-judgment Mareva . ... the plaintiff had a S iskina cause of action against Mr Chabra and the injunction against the company was ancillary to that cause of action. Accordingly, I think that there was jurisdiction to grant the Mareva against Mrs Aiyela, who did not need to be joined because she was already a party to the action."

See also per Steyn LJ at 1123G-1124A and per Sir Thomas Bingham MR who stated at 1124E:

"Both principle and authority persuade me that the judges who made these orders did have jurisdiction to make them.. I am very pleased to reach that conclusion, for if jurisdiction did not exist the armoury of powers available to the court to ensure the effective enforcement of its orders would in my view be seriously deficient."

He added:

"The jurisdiction is of course one to be exercised with caution, restraint and appropriate respect for the legitimate interests of third parties. But that the jurisdiction exists ... I do not doubt."

WAS THE INJUNCTION WRONGLY MADE?

[38]Turning now to the question of jurisdiction, I consider that Aikens J was correct when he expressed himself satisfied that Toulson J was consciously exercising the court's ` Chabra -type' jurisdiction when imposing the Mareva injunction upon Mr Yamvrias contained in paragraph 5 of the October 1997 order. In the course of argument on 1 st October 1997, Toulson J had been referred both to the Chabra case and Mercantile Group -v- Aivela and, in my view, was plainly referring to the jurisdiction therein explained when making the observation in paragraph 29 of his judgment which I have quoted at paragraph 14 above.

[39]Until that point in his judgment, Toulson J had been entirely concerned with arguments addressed to the question whether or not the order sought in paragraph 1 of the summons of 29 th September 1997 (see paragraph 12 above) was one which he could or should make in circumstances where Mr Yamvrias had been held not to be personally liable on the cause of action brought against him in respect of which the Mareva relief against him had originally been granted. In that respect he stated:

"It is logical and just that if a court has jurisdiction to prohibit a party [i.e. Rendsburg] from acting in a way intended to make itself judgment-proof, so the court should be able to order that party to un-do measures taken with that object ... . When an order is made against a company which is a party to an action, the court also has jurisdiction to make an order against an officer of a company, if that is necessary in order to secure compliance with the order by the company. In the present case, therefore, I am satisfied that I have the jurisdiction to make the order sought, and indeed, Mr Hamilton QC [for Mr Yamvrias] has not submitted otherwise."

He then dealt with and dismissed a number of submissions by Mr Hamilton by way of further objection to the form of order sought in the summons. These included a submission that the summons should be dismissed as premature because Yukong had not yet signed judgment against Rendsburg and did not wish to do so pending a decision whether or not to appeal against the judge's dismissal of its claim against Mr Yamvrias, and that it was inappropriate to make an order for immediate repayment of the funds paid away by Rendsburg if Yukong intended not to file judgment against Rendsburg but to pursue its claim against Mr Yamvrias by way of appeal. The judge held that the correct answer to that objection was to require an undertaking by Yukong that it would sign judgment against Rendsburg within forty-eight hours after it had complied with the order. So far as the order requested under paragraph 1 of Yukong's summons was concerned, which (with the wording slightly amended) became paragraph 1 of the October 1997 order, Toulson J said:

"I will listen to any further arguments as to the precise form of wording, but I propose, subject to Yukong giving the undertaking to which I referred, to make an order that Rendsburg, by Mr Yamvrias, cause the sum of US$ 245, 614 to be paid into an account to be specified within twenty-eight days unless within that period Rendsburg or Mr Yamvrias apply to vary or set aside this order."

[40]Having so dealt with the matter, the judge turned to the question of whether or not the Mareva order already existing against Mr Yamvrias should be discharged. He did so with the words I have already quoted at paragraph 14 above which I am satisfied make it clear that, in continuing the Mareva order against Mr Yamvrias in reduced sum of US$ 245,000, he did so by way of an order ancillary to Yukong's claim against Rendsburg, pending the signing of judgment against it.

[41]When Waller LJ, in giving leave to Mr Yamvrias to appeal from the order of Tuckey J which had granted leave to Yukong to issue a Writ of Sequestration against Mr Yamvrias, expressed his concern that the October 1997 Order was a "shortcut" in relation to the enforcement of a judgment against Rendsburg he was considering paragraph 1 of that order. It was that paragraph only which was the subject of the notice of motion for leave to sequestrate the assets of Mr Yamvrias. Waller LJ did not refer to, or apparently consider, the question of the court's jurisdiction to make the freezing order set out in paragraph 5. Equally, at the substantive hearing of the appeal, Nourse LJ gave no apparent consideration to the question of the court's jurisdiction to make the freezing order. He simply echoed the concern of Waller LJ about the jurisdiction of Toulson J, having dismissed the action as against Mr Yamvrias, to make any order for payment against Mr Yamvrias personally. The only reference which Nourse LJ made to paragraph 5 of the October 1997 was in relation to the attempt of counsel for Yukong to use paragraph 5 as an aid to the construction of paragraph 1, by submitting that, since paragraph 5 imposed a personal obligation on Mr Yamvrias which continued until paragraph 1 had been complied with, it was indicative of an intention on the part of Toulson J to render Mr Yamvrias personally liable to effect or procure the payment under paragraph 1. That argument was rejected by Nourse LJ with the observation that paragraph 5 could only be relied on if there was any ambiguity in paragraph 1, which ambiguity did not exist in his view. That being so, I do not consider that Mr Gee can derive support for his submissions that there was no jurisdiction to make the freezing order from any previous observations made in this court.

[42]Nor do I consider that Mr Gee's position is improved by reason of the fact that, following the Court of Appeal decision, Yukong suggested that the injunction should be discharged. The effect of that decision was that Yukong had no entitlement, as it had supposed, to issue a writ of sequestration against Mr Yamvrias under paragraph 1 of the October 1997 Order in respect of Rendsburg's failure to pay into court the sum ordered. It was Yukong's case that, by then, it was clear that any attempts to trace assets through Mr Yamvrias had proved hopeless and, in any event, the consequent consent order for discharge of the freezing order was expressly agreed to be without prejudice to the question of Mr Yamvrias' entitlement to an inquiry as to damages.

[43]Mr Gee has submitted that the injunction should not be construed as having been made under the court's Chabra -type jurisdiction because of the form in which it was made i.e. a form which applied generally to Mr Yamvrias' assets up to the sum of US$ 244,965, rather than being expressly limited to the proceeds of the US$ 244, 965 which had passed from Rendsburg's account to that of Ladidi and thereafter elsewhere. I do not accept that submission for two reasons. First, it seems to me that in a case such as this the answer to the question whether or not an order was made pursuant to a particular jurisdiction is prima facie to be determined by reference to the terms of the judgment, rather than the wording of the order. Where, a judge makes clear (as Toulson LJ made clear in this case) that in making a particular order he is exercising a particular jurisdiction, and at the same time he makes clear the factual assumptions and legal basis upon which he does so, then, unless, on appeal from that order, it is demonstrated that those assumptions were invalid or the legal basis incorrect, the order will ordinarily be assumed to have been regularly made in any subsequent proceedings. It may be appropriate to make an exception in a case where the wording of the order is manifestly inconsistent or at odds with the jurisdiction identified by the judge; however, that is not this case. I say that because of the second reason, to which I now turn.

[44]Although it is plain that the court's Chabra -type of jurisdiction will only be exercised where there are grounds to believe that a co-defendant is in possession or control of assets to which the principal defendant is beneficially entitled, it does not seem to me that the jurisdiction is limited to cases where such assets can be specifically identified in the hands of the co-defendant. Once the court is satisfied that there are such assets in the possession or control of the co-defendant, the jurisdiction exists to make a freezing order as ancillary and incidental to the claim against the principal defendant, although there is no direct cause of action against the co-defendant. Since the purpose of granting such an injunction against the co-defendant is to preserve the assets of the principal defendant so as to be available to meet a judgment against him, the form of order made against the co-defendant should be as specific as the circumstances permit in respect of the principal defendant's assets of which he has possession or control. Thus, generally, the form of injunction will be tailored to that purpose and should be no wider than is necessary to achieve it. However, subject to that requirement, if a co-defendant is mixed up in an attempt to make the principal defendant judgment-proof and the assets or their proceeds are not readily identifiable in his hands it is open to the court, where it is just and convenient to do so, to make an order which catches the co-defendant's general assets up to the amount of the principal defendant's assets of which he appears to have possession and control. That was in fact the position in TSB -v- Chabra itself. In that case, Mr Chabra, the original defendant was alleged to be the alter ego of the co-defendant company against which the plaintiff had no direct cause of action, but in respect of which there was a good arguable case that assets vested in its name were in fact beneficially the property of Mr Chabra, in particular the proceeds of sale of recently completed hotel and restaurant interests and the house in which Mr and Mrs Chabra lived. Because of the difficulty in ascertaining which assets of the company were in fact assets to which Mr Chabra was beneficially entitled, the Mareva Order made against the company was one which applied generally to prevent it from disposing or dealing with any of its assets within the jurisdiction, albeit it also covered `in particular' the proceeds of sale from the hotel and restaurant businesses. Mummery LJ observed at p.242F:

"In brief, the most realistic and practical form of relief in this case is to restrain the company from disposing of, or dealing with, assets until it is established whether the plaintiff is entitled to a judgment against Mr Chabra and until it is established which, if any, of the assets apparently vested in the company are available to satisfy any judgment obtained against Mr Chabra."

[45]In this case, at the time of the October 1997 order, Mr Yamvrias had failed to reveal what had happened to the US$ 245,000-odd paid away by Rendsburg from its account with DNB save that US$ 164,799 had been transferred to Ladidi and thence to VAL. He had failed to give any (or any credible) explanation of any consideration for or purpose behind the payments or who was the ultimate beneficiary. Toulson J was satisfied that Mr Yamvrias was the controller of Rendsburg and Ladidi and the position of VAL and the reason for the transfer to it remained obscure. Toulson J expressed himself satisfied at trial that the sole purpose of the transfer to Ladidi (as the creature of Mr Yamvrias) was to put Rendsburg's assets beyond the reach of Yukong and he stated that Mr Yamvrias had `put up a cover story which has failed'. As Aikens J observed at paragraph 29 of his judgment (see paragraph 23 above) Toulson J appears to have concluded that Mr Yamvrias was still probably controlling assets to the extent of US$ 245,000-odd which were beneficially owned by Rendsburg. In those circumstances, I consider that Toulson J was entitled to make the freezing order contained in paragraph 5 of the October 1997 order in the form which he did.

[46]Mr Gee has advanced two principal arguments as to why the form of order was too wide. First, he submitted that the key reason in TSB -v- Chabra for the wide wording of the order was an element absent in this case, namely the observation of Mummery J that the effect of the company disposing of its assets would be indirectly to reduce the value of any shareholding which Mr Chabra might have in the company, thus diminishing the prospects of company assets being available to meet a judgment against Mr Chabra. I do not accept that submission. That observation of Mummery J was a makeweight observation supplementary to the reason of broad principle that there were assets of the company not currently identifiable which were beneficial assets of Mr Chabra which ought to be available to the plaintiff to satisfy any judgment it might obtain against him. Mr Gee also pointed out that in the case of Mercantile Group -v- Aiyela , there was present an important element not highlighted by the Court of Appeal, namely that there was before Hobhouse J at first instance, a potential claim by the plaintiffs against the original defendants under s.423 of the Insolvency Act 1986 and the plaintiffs were also in a position to make application for leave for an order under s.424, in support of both of which claims the court had jurisdiction to grant an ancillary Mareva relief. A reference to the decision of Hobhouse J at first instance

[1993] FSR 745

, makes clear that that was not the basis upon which Hobhouse J made his order. In that respect, Hobhouse J observed:

"The Mareva is being used properly as ancillary relief in proceedings properly before the court and in conjunction with substantive rights being enforced in the proceedings. Mrs Aiyella is a person who has become involved in what are to be assumed to be steps taken by Mr Aiyella to defeat the course of justice. She thereby came under a duty to assist the course of justice. That duty gives the court the jurisdiction to grant an injunction against her ...."

It was on that basis that the Court of Appeal upheld the judgment of Hobhouse J and approved the principle enunciated by Mummery J in TSB -v- Chabra which he had applied.

[47]Thus, I do not consider that the injunction was wrongly made in the sense argued for by Mr Gee. Nonetheless, Aikens J held that, while the fact that the injunction was properly granted was an important feature in considering whether there should be an enquiry as to damages, it was not conclusive. He therefore proceeded to consider whether Mr Yamvrias had demonstrated that he had personally suffered damage as a result of the October 1997 Order, having stated that, despite the `disreputable and devious behaviour' of Mr Yamvrias, it was not so shocking as to debar him from claiming damages if he could demonstrate a credible claim in that respect. It was nonetheless a feature to be taken into account when assessing the credibility of evidence as to loss proffered on his behalf: see the passage of the judgment quoted at paragraph 27 above. THE CONTRACTS OF AFFREIGHTMENT SCHEME

[48]The basis of the claim for damages in connection with this scheme was the assertion of Mr Yamvrias, made in the witness statement of Mr Soutar, that Captain Skarvelis had offered Mr Yamvrias the opportunity to invest the sum of $100, 000 in a scheme to charter Panamax vessels to fulfil contracts of affreightment which Captain Skarvelis' company Veritas had concluded to carry cargoes from Argentina. Mr Yamvrias had indicated his intention to participate by a Fax letter dated 17 th October 1997 signed by him on Marcan-headed paper and exhibited to Mr Soutar's witness statement. The letter stated:

"I am interested to participate in the contracts of affreightment which you are negotiating on a 50/50 basis. If you accept above proposal, please confirm your agreement by return."

[49]No further relevant correspondence was exhibited save(1) a telex of 16th March 1998 from Marcan to the owners of one of the vessels concerned guaranteeing the obligations of Veritas under the charterparty;

(2) a letter dated 20 th May 1998 from Veritas to Mr Yamvrias at Marcan Shipping, referring to the previous year's offer, and indicating that, had Mr Yamvrias invested on a `50% participation', he would have realised almost $400,000. It offered him the chance again to participate by remittance of $100,000 by 31 st May 1998. Mr Soutar simply stated that Mr Yamvrias had been unable to participate personally as an investor `because the injunction remained in force and he was unable to raise the required finance'; that Mr Yamvrias would have realised the profits set out in the letter from Captain Skarvelis; and that he could not accept the further invitation to invest contained in the subsequent letter because of the injunction which was still in force.

[50]By a witness statement in answer, Mr Moon, Yukong's solicitor, challenged the case put forward by Mr Yamvrias and made the point that, if the business opportunities spoken to were genuine, there had been nothing to prevent Mr Yamvrias from seeking Yukong's agreement, and/or to apply to the court, to allow such investment. In this respect, the 28-day `liberty to apply' to vary the Mareva had not expired.

[51]The judge, having already examined in detail, and discredited, Mr Yamvrias' claim in respect of the `Ever' Vessels Project (see paragraphs 24-25 above), dealt quite shortly with the Contracts of Affreightment he said:

"45. I cannot accept there is credible evidence of loss to Mr Yamvrias under this head. First, there is no credible evidence that Mr Yamvrias was unable to go ahead with the project on a personal basis (by investing $100,000) other than the say-so of Mr Soutar. If I am meant to read the fax of 17 th October to Veritas as being an indication that Mr Yamvrias wished to participate personally in the project, then it seems he thought he could do so at that stage. But on 17 th October 1997 the injunction restraining him from removing assets up to $244,965 was already in force. That did not stop him showing an interest. There is no contemporaneous evidence to indicate that he attempted to carry his personal interest further but was prevented because of the injunction. 46. Secondly there is no evidence that Mr Yamvrias had $100,000 to invest, but was unable to use it because of the injunction. On the contrary, when Mr Yamvrias filed evidence of his assets (pursuant to paragraph 2 of the Order of Waller J of 7 June 1996) he stated that he had no assets other than some equity in his home. There is no evidence that he had obtained further assets since June 1996 but was unable to utilise them because of the injunction of October 1997. 47. It seems much more likely that it was Marcan that was going to participate in the project and it did so. Hence the guarantee that Marcan gave in March 1998 to the owners of M.V "

Spear ". "

[52]In my view, the decision of the judge was entirely justifiable on the limited material before him, bearing in mind his reasons for cynicism as to the quality of the evidence advanced by or on behalf of Mr Yamvrias in relation to his assets generally and to support the claim in respect of the `Ever' Vessels Project. The letter of 17 th October 1997 clearly indicated the view of Mr Yamvrias that the injunction recently granted against him would, for whatever reason, present no obstacle to his investment and, without further explanation (which it did not receive) there was no reason to place credence upon his assertion that the injunction prevented him from investing. Nor was there any explanation why, if it did so, the application to set aside the injunction which Mr Yamvrias made on 15 th November 1997 (see paragraph 16 above) was not proceeded with, at least to the extent of seeking a variation to permit the investment, but was dismissed on 18 th December 1997 with Mr Yamvrias' consent. Nor, given Mr Yamvrias' evidence as to his means, was it apparent where the money for the investment would come from. No evidence was supplied in that respect. The judge did not touch upon the subsequent letter from Veritas dated 20 th May 1998, setting out the quantum of his apparent loss and inviting further investment. No doubt he did not regard it as necessary to do so, once he had rejected the assertion that the injunction had prevented an investment being made.

[53]In the light of the obvious difficulty in upsetting the finding of the judge in this respect, Mr Yamvrias made application at the hearing of this appeal that the court should admit additional evidence to demonstrate why the judge's conclusions were wrong, in the form of witness statements from Mr Yamvrias and Captain Skarvelis. No explanation has been afforded by Mr Yamvrias or by Mr Gee on his behalf that the evidence sought to be adduced was not available and adduced below (c.f . Ladd -v- Marshall

[1954] 1 WLR 1489

). However CPR 52.11(2), which now governs the admission of such evidence ("Unless it orders otherwise, the appeal court will not receive evidence which was not before a lower court") has freed the court from the straitjacket of the `so-called rules' laid down in cases such as Ladd -v- Marshall : see Banks -v- Cox , (17 th July 2000 unreported) C.A. per Morritt V-C. In that decision, the court adopted the statement of May LJ in Hickey -v- Marks (6 th July 2000, unreported) C.A. that:

"Since the Civil Procedure Rules are a new procedural code, the former body of authority will not apply, although of course, the intrinsic persuasiveness of all relevant considerations, including, if they arise, those which were considered persuasive under the former procedure, will be capable of contributing to a just result."

Thus, it is plain, that while the court will pay regard to the principles in Ladd -v- Marshall, it will adopt a flexible approach in the light of the overriding objective. This was well illustrated in the approach of Auld LJ in Electra Private Equity Partners -v- KPMG Peat Marwick [2000] PNLR 247 in relation to an appeal concerning new evidence in respect of an interim decision. Whilst recognising that `there should be some control over attempts by disappointed litigants to retrieve lost ground in interlocutory appeals by relying upon evidence which they could and should have put before the court below', he favoured an approach whereby the admission of further evidence would be `a matter for the court's discretion, to be exercised according to the nature of the interlocutory hearing and the individual circumstances of the case'. He stated that the court might adopt a more relaxed approach in relation to applications at an early stage of the litigation where it might be unjust to expect a party (particularly a defendant) to have `all his tackle in order'.

[54]At the outset of the appeal, with the consent of counsel, we read the further evidence `de bene esse', without prejudice to the objection of Mr Collins QC on behalf of Yukong that it should not be admitted.

[55]The points made by the further evidence are these. First, in relation to paragraph 47 of Toulson J's judgment (see paragraph 51 above), Mr Yamvrias states that, while Marcan received benefit from the scheme in the form of substantial brokerage (in which respect it acted as shipbroker and not investor) it did not invest in any other sense. He asserts that, even if so disposed, it could not do so, being authorised under the Regulations of the Baltic Exchange to act as a broker or agent only and not as a principal within the Baltic Market. That may or may not be so in the particular circumstances of Mr Yamvrias' proposed investment. However it was peripheral to the judge's reasoning as to whether Mr Yamvrias had demonstrated personal loss. Second, so far as his assets are concerned, Mr Yamvrias says that, if the injunction had not been in place, he would have been able to raise the money to make the investment by means of a bank loan backed by the equity in his house (jointly owned with his wife), then some £150,000. This carries the matter little further and fails to address the point which concerned the judge, namely the absence of contemporaneous supporting evidence.

[56]Third, the witness statement of Captain Scarvelis supplies a degree of chapter and verse in respect of the Contracts of Affreightment Scheme operated by Veritas. He affirms and exhibits a copy of the faxed letter of 17 th October 1997 and states that, shortly afterwards, Mr Yamvrias advised him that he was unable to participate in the venture because he was involved in litigation which had resulted in a block on his assets preventing him from raising the necessary finance. He states that the first year of the scheme's operation was September 1997 - June 1998 and that it yielded substantial profits. He wrote again to Mr Yamvrias on 23 rd September 1998, advising him of the results and inviting him to participate in the second year of operation, due to commence on 1 st October 1998. Save in two vital respects the layout and content of the text of that letter are identical to the layout and text of the letter of 20 th May 1998 earlier produced by Mr Yamvrias. The two vital respects are(a) the date of the letters and

(b) the fact that the final paragraph of the letter of 23 rd September asks for a reply by 30 th September 1998 and a remittance of $100,000 by 15 th October 1998, whereas the letter of 20 th May asks for a reply by 31 st May 1998 with a remittance on that date.

[57]In the face of these discrepancies, Mr Collins submitted that it is plain that the date and text of the letter exhibited by Captain Scarvelis, rather than the date and text of the letter exhibited by Mr Yamvrias, are authentic. The first year of operation had not been completed by 20 th May, whereas it had by the 23 rd September. This suggests ex post facto alteration by Mr Yamvrias, not least because the figures shown for the first year's profits could not have been ready by 20 th May. Whether or not that was so, it is plain that Mr Yamvrias was presented with the opportunity to invest in the second year of operation at a time (September 1998) when he was free of the constraints of the injunction, it having been discharged by consent on 10 th August 1998 (see paragraph 19 above). Thus, his earlier assertion that the injunction prevented him from making the investment in the second year is wholly unsustainable. Mr Gee did his best to argue, but failed to convince me, that this was not so. In my view the production by Captain Scarvelis of the letter of 23 rd September 1998 would have confirmed and enhanced the judge's view of the unreliability of Mr Yamvrias' evidence, rather than assisting his case. Accordingly, whether by reference to the principles in Ladd -v- Marshall or on the basis of the overriding objective in the individual circumstances of the case, I can see no sound reason to receive the further evidence sought to be adduced in this appeal.

[58]I would therefore dismiss this appeal. LADY JUSTICE HALE: I agree LORD JUSTICE THORPE: I also agree

Order

Appeal dismissed. An order for costs on the standard basis. Permission to appeal refused. (This order does not form part of approved judgment)

Cited in 17 later judgments

and 8 more of the most senior