‘141. This court has a discretion underCPR 52.21 (2)(b) to receive evidence on appeal which was not before the lower court. The well-known test in Ladd v Marshall[1954] 1 WLR 1489 continues to provide important guidance as to the exercise of the discretion, although the discretion is not confined by it: evidence may be admitted where the test is not fulfilled, or not admitted where it is, if either is dictated by furtherance of the overriding objective (Hertfordshire Investments Ltd v Bubb[2000] EWCA Civ 3013 [2000] 1 WLR 2318 , 2325E-H; Yukong Line Ltd v Rendsburg Investments Corporation[2000] EWCA Civ 358 [2001] 2 Lloyd’s Rep 113 at 125; Hamilton v Al-Fayed (No 2)[2000] EWCA Civ 3012 [2001] EMLR 15 at [11]; Terluk v Berezowsky[2011] EWCA Civ 1534 at [32]). 142. The Ladd v Marshall test is that new evidence will be allowed on appeal if three conditions are fulfilled, namely: (1) the evidence could not have been obtained with reasonable diligence for use at first instance; (2) if given, the evidence would probably have an important influence on the result of the case, though it need not be decisive; and (3) the evidence is such as is presumably to be believed.’
‘39. As the judge rightly recognised the foundation on which the rule must now rest is that findings of fact made by another decision-maker are not to be admitted in a subsequent trial because the decision at that trial is to be made by the judge appointed to hear it (the trial judge), and not another. The trial judge must decide the case for himself on the evidence that he receives, and in the light of the submissions on that evidence made to him. To admit evidence of the findings of fact of another person, however distinguished, and however thorough and competent his examination of the issues may have been, risks the decision being made, at least in part, on evidence other than that which the trial judge has heard and in reliance on the opinion of someone who is neither the relevant decision maker nor an expert in any relevant discipline, of which decision making is not one. The opinion of someone who is not the trial judge is, therefore, as a matter of law, irrelevant and not one to which he ought to have regard. 40. In essence, as the judge rightly said, the foundation of the rule must be the preservation of the fairness of a trial in which the decision is entrusted to the trial judge alone.’
‘105. … Where there is available to the judge on an application under section 25 a reasoned judgment of a foreign court at an interlocutory stage upon the merits or arguability of the defendant’s [sc. claimant’s] claim, that judgment will inevitably form the judge’s starting-point in relation to the question of “good arguable case” and, depending upon the apparent cogency of the reasoning and the force of any arguments raised by the defendant, is likely to prove conclusive. …’
‘110. … It is, indeed, Mr McGrath suggested, perfectly possible and logical to conclude that both sides have a good arguable case on the material presently available and that their dispute can only be resolved at trial. Mr McGrath also submitted, relying upon the Kazakhstan Kagazy case at [23] (as well as Derby & Co Ltd v Weldon (No. 1)[1990] Ch 48 at 57-58), that the Court should, at this early stage in the litigation, discourage any attempt to embroil it in a detailed assessment of the facts or legal argument. I accept that Mr McGrath is right about this. In the present case, however, my having decided that there is no “serious issue to be tried”, it is impossible to conclude that the “good arguable case” test has been met.’
‘38. Very recently, in Omni Bridgeway (Fund 5) Cayman Investment Ltd v Bugsby Property LLC[2023] EWHC 2755 (Comm) , Jacobs J said, at [8]: “The test of ‘good arguable case’ is well-known in the context, for example, of freezing injunctions. The authorities in this area are summarised in Gee: Commercial Injunctions 7th edition, paragraphs 12-032 – 12-033 drawing on classic statements of Mustill J. It is not enough to show an arguable case, namely one which a competent advocate can get on its feet. Something markedly better than that is required, even if it cannot be said with confidence that the plaintiff is more likely to be right than wrong. It is therefore not necessary for the applicant to have a case with a better than 50 per cent chance of success.’ 39. I consider that that statement of the position is correct, and summarises the test which I should apply.’
‘31. The assessment is one made by this court. It is not a minitrial and it can only be done on the basis of the evidence before me. The proceedings relate to an underlying claim in Scotland. Weight must be given to the decision of the Scottish court that there is a good arguable case. The parties, however, agreed that that decision of the Scottish court is not determinative. …’
‘47. … The question thus becomes how closely the court should examine the sufficiency of the material already available to the prospective pursuer before determining that an action is, indeed, likely to be brought. That bar has necessarily been set up relatively low; the prospective pursuer need not show a prima facie case which could confidently be expected to pass muster against the standards which would be applied at procedure roll, but merely an “intelligible” in such case – Pearson, Ted Jacob Engineering. To demand a higher standard of the prospective pursuer at the point of application for the section 1 order would risk stultifying the facility which Parliament has determined should be available to persons in that position. …’
‘A petitioner requires to plead an “intelligible” prima facie case, rather than a “relevant” case:[2024] CSOH 51 at [47] and [49] per Lord Sandison. As the term suggests, the requirement of an “intelligible” prima facie case is a comparatively low one, which is to say lower than the standard of relevancy. In contrast, “relevancy” is (ordinarily) the standard which pleadings in an action must achieve if challenged. The relevancy of the case may be tested at a debate on the procedure roll: whether, taking the averment in the pleadings alone but pro veritate, the Pursuer is bound to fail at trial. A case which is bound to fail will be dismissed without a trial.’
‘6. I set out the parties’ contentions on the existence or otherwise of a prima facie case in my opinion in the petition process. For the reasons set out in that opinion, in particular the identification of the salient points of the pursuer’s case at [49], and taking fully into account the nature of the defence stated, I conclude that a prima facie case of the requisite standard has been stated by the pursuer. It is a good arguable case, notwithstanding that it will face the same challenges and hurdles described in my opinion in the petition procedure. For the reasons there explained, I do not consider it appropriate at this stage to canvass in any further detail at this stage the apparent merits and weaknesses of the case of any party.’
‘49. There does, however, remain the petitioner’s allegation that Mex Securities was caused to renege on a binding settlement agreement and to repudiate a relative consent order in furtherance of a scheme to benefit the respondents and harm the interests of the petitioner. That it did renege on what was at least an apparently binding such agreement, and attempt to repudiate the consent order, does not appear to be in real dispute amongst the parties. The suggestion that it did so in furtherance of an alleged conspiracy remains a matter of inference (as would be the case in most instances where a conspiracy is alleged). The suggested inference is by no means one which will necessarily be drawn at the end of the day. There are clear difficulties it (at least as matters currently appear), which counsel for the respondents highlighted in the course of his submissions, as already noted. The petitioner’s theory of the case may have to surmount the hurdle of a procedure roll debate, up when the test to be applied to its efficiency will not be limited to one of mere intelligibility. …’
‘51. … (1) Where the court accepts that there is a good arguable case that a respondent engaged in wrongdoing against the applicant relevant to the issue of dissipation, that holding up will point powerfully in favour of a risk of dissipation. (2) In such circumstances, it may not be necessary to adduce any significant further evidence in support of a real risk of dissipation; but each case will depend upon its own particular facts and evidence.’
‘And then worst comes to worst. I was informed by our fund administrator and the auditor, that there have been recent regulatory changes and that we are not allowed to hold instruments which have gold included and we have to sell the position immediately. There is no choice for me to avoid this. …’
‘Application may be made to the courts of a contracting state for such provisional, including protective measures as may be available under the law of that state, even if, under this Convention, the courts of another contracting state have jurisdiction as to the substance of the matter.’
‘It is in my judgment regrettable that a gloss has been placed on the words of section 25(2). The question for consideration is not whether the circumstances are exceptional or very exceptional, but whether it would be inexpedient to make the order. Where an application is made for in personam relief in ancillary proceedings, two considerations which are highly material are the place where the person sought to be enjoined is domiciled and the likely reaction of the court which is seized of the substantive dispute. Where a similar order has been applied for and has been refused by that court, it would generally be wrong for us to interfere. But where the other court lacks jurisdiction to make an effective order against a defendant because he is resident in England, it does not at all follow that it would find our order objectionable.’
‘2. … The point of principle which lies at the heart of the appeals is whether a worldwide freezing order should be made under section 25 of the 1982 Act in support of an action in another jurisdiction in circumstances where the defendant in question is neither domiciled nor resident within the jurisdiction and there is no substantial connection between the relief sought and the territorial jurisdiction of the English court.’
‘115. As the authorities show, there are five particular considerations which the court should bear in mind, when considering the question whether it is inexpedient to make an order. First, whether the making of the order will interfere with the management of the case in the primary court e.g. where the order is inconsistent with an order in the primary court or overlaps with it. That consideration does not arise in the present case. Second, whether it is the policy in the primary jurisdiction not itself to make worldwide freezing/disclosure orders. Third, whether there is a danger that the orders made will give rise to disharmony or confusion and/or risk of conflicting inconsistent or overlapping orders in other jurisdictions, in particular the courts of the state where the person enjoined resides or where the assets affected are located. If so, then respect for the territorial jurisdiction of that state should discourage the English court from using its unusually wide powers against a foreign defendant. Fourth, whether at the time the order is sought there is likely to be a potential conflict as to jurisdiction rendering it inappropriate and inexpedient to make a worldwide order. Fifth, whether, in a case where jurisdiction is resisted and disobedience to be expected, the court will be making an order which it cannot enforce.’
‘But the Republic, when it launched the English proceedings, did not know where the assets were located. One of its objects was to find out. The proceedings were started here because it was here the information was available.’
‘66. … it is clear that the principal basis of the decision was the fact that England was the only place which at any known connection with the asset concealment scheme and was therefore the place where information was most likely to be obtainable, the court having earlier ordered the solicitors to provide information, an application to set aside which had failed.’
‘68. In an article written in Essays on International Litigation and the Conflict of Laws in 1994, referred to by Millett LJ in Cuoghi, Lawrence Collins commented as follows: “For an English court to enjoin a person properly subject to its jurisdiction from disposing of assets abroad cannot in this sense be regarded as exorbitant. Perhaps Republic of Haiti v Duvalier goes to the very edge of what is permissible. For the sole connection of England with that case was the presence in England of solicitors with access to the foreign assets. The exercise of jurisdiction can be justified on the basis that the solicitors could be treated as agents of the defendants and the relevant information was located in England.” 69. The same view of the ratio of Republic of Haiti v Duvalier is expressed in Dicey and Morris: The Conflict of Laws (13th ed, 2000) vol 1 at 192-3 where it is stated that “the relief was effective because the defendants had solicitors in England who held assets for them abroad and … therefore the fact that the court had no jurisdiction apart from section 25 … did not make it “inexpedient for the courts to grant” the relief within the meaning of section 25(2).’
‘2. … In the Board’s view, those decisions should not now be disturbed. The EC CPR must be interpreted by reference to them and, if a wrong turning has been taken, the appropriate means of getting the law of the BVI back on track is by amending the EC CPR.’
‘101. In summary, a court with equitable and/or statutory jurisdiction to grant injunctions where it is just and convenient to do so has power - and it accords with principle and good practice - to grant a freezing injunction against a party (the respondent) over whom the court has personal jurisdiction provided that: i) the applicant has already been granted or has a good arguable case for being granted a judgment or order for the payment of a sum of money that is or will be enforceable through the process of the court; ii) the respondent holds assets (or, as discussed below, is liable to take steps other than in the ordinary course of business which will reduce the value of assets) against which such a judgment could be enforced; and iii) there is a real risk that, unless the injunction is granted, the respondent will deal with such assets (or take steps which make them less valuable) other than in the ordinary course of business with the result that the availability or value of the assets is impaired and the judgment is left unsatisfied. 102. Although other factors are potentially relevant to the exercise of the discretion whether to grant a freezing injunction, there are no other relevant restrictions on the availability in principle of the remedy. In particular: i) There is no requirement that the judgment should be a judgment of the domestic court - the principle applies equally to a foreign judgment or other award capable of enforcement in the same way as a judgment of the domestic court using the court’s enforcement powers. ii) Although it is the usual situation, there is no requirement that the judgment should be a judgment against the respondent. iii) There is no requirement that proceedings in which the judgment is sought should yet have been commenced nor that a right to bring such proceedings should yet have arisen: it is enough that the court can be satisfied with a sufficient degree of certainty that a right to bring proceedings will arise and that proceedings will be brought (whether in the domestic court or before another court or tribunal).’ i) There is no requirement that the judgment should be a judgment of the domestic court - the principle applies equally to a foreign judgment or other award capable of enforcement in the same way as a judgment of the domestic court using the court’s enforcement powers. ii) Although it is the usual situation, there is no requirement that the judgment should be a judgment against the respondent. iii) There is no requirement that proceedings in which the judgment is sought should yet have been commenced nor that a right to bring such proceedings should yet have arisen: it is enough that the court can be satisfied with a sufficient degree of certainty that a right to bring proceedings will arise and that proceedings will be brought (whether in the domestic court or before another court or tribunal).’
‘17. The injunction is equitable in origin, and remains so despite its statutory confirmation. The power of courts with equitable jurisdiction to grant injunctions is, subject to any relevant statutory restrictions, unlimited: Spry, Equitable Remedies, 9th ed (2014) (“Spry”), p 333, cited with approval in, among other authorities, Broadmoor Special Hospital Authority v Robinson[2000] QB 775 , paras 20-21 and Cartier International AG v British Sky Broadcasting Ltd[2016] EWCA Civ 658 ; [2017] Bus LR 1, para 47 (both citing the equivalent passage in the 5th ed (1997)), and Convoy Collateral Ltd v Broad Idea International Ltd[2021] UKPC 24 ;[2023] AC 389 (“Broad Idea”), para 57. The breadth of the court’s power is reflected in the terms of section 37(1) of the 1981 Act, which states that: “The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.” … 43. An injunction against newcomers purports to restrain the conduct of persons against whom there is no existing cause of action at the time when the order is granted: it is addressed to persons who may not at that time have formed any intention to act in the manner prohibited, let alone threatened to take or taken any steps towards doing so. That might be thought to conflict with the principle that an injunction must be founded on an existing cause of action against the person enjoined, as stated, for example, by Lord Diplock in Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA[1979] AC 210 (“The Siskina”), 256. There has been a gradual but growing reaction against that reasoning (which Lord Diplock himself recognised was too narrowly stated: British Airways Board v Laker Airways Ltd[1985] AC 58 , 81) over the past 40 years, culminating in the recent decision in Broad Idea, cited in para 17 above, where the Judicial Committee of the Privy Council rejected such a rigid doctrine and asserted the court’s governance of its own practice. It is now well established that the grant of injunctive relief is not always conditional on the existence of a cause of action. Again, it is relevant to consider some established categories of injunction against “no cause of action defendants” (as they are sometimes described) in order to see whether newcomer injunctions fall into an existing legitimate class, or, if not, whether they display analogous features.’
“The law is non-contentious. The following general principles can be distilled from the relevant authorities by way of summary as follows: i) The duty of an applicant for a without notice injunction is to make full and accurate disclosure of all material facts and to draw the court’s attention to significant factual, legal and procedural aspects of the case; ii) It is a high duty and of the first importance to ensure the integrity of the court’s process. It is the necessary corollary of the court being prepared to depart from the principle that it will hear both sides before reaching a decision, a basic principle of fairness. Derogation from that principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy. The court must be able to rely on the party who appears alone to present the argument in a way which is not merely designed to promote its own interests but in a fair and even-handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make; iii) Full disclosure must be linked with fair presentation. The judge must be able to have complete confidence in the thoroughness and objectivity of those presenting the case for the applicant. Thus, for example, it is not sufficient merely to exhibit numerous documents; iv) An applicant must make proper enquiries before making the application. He must investigate the cause of action asserted and the facts relied on before identifying and addressing any likely defences. The duty to disclose extends to matters of which the applicant would have been aware had reasonable enquiries been made. The urgency of a particular case may make it necessary for evidence to be in a less tidy or complete form than is desirable. But no amount of urgency or practical difficulty can justify a failure to identify the relevant cause of action and principal facts to be relied on; v) Material facts are those which it is material for the judge to know in dealing with the application as made. The duty requires an applicant to make the court aware of the issues likely to arise and the possible difficulties in the claim, but need not extend to a detailed analysis of every possible point which may arise. It extends to matters of intention and for example to disclosure of related proceedings in another jurisdiction; vi) Where facts are material in the broad sense, there will be degrees of relevance and a due sense of proportion must be kept. Sensible limits have to be drawn, particularly in more complex and heavy commercial cases where the opportunity to raise arguments about non-disclosure will be all the greater. The question is not whether the evidence in support could have been improved (or one to be approached with the benefit of hindsight). The primary question is whether in all the circumstances its effect was such as to mislead the court in any material respect; vii) A defendant must identify clearly the alleged failures, rather than adopt a scatter gun approach. A dispute about full and frank disclosure should not be allowed to turn into a mini-trial of the merits; viii) In general terms it is inappropriate to seek to set aside a freezing order for non-disclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established, otherwise the application to set aside the freezing order is liable to become a form of preliminary trial in which the judge is asked to make findings (albeit provisionally) on issues which should be more properly reserved for the trial itself; ix) If material non-disclosure is established, the court will be astute to ensure that a claimant who obtains injunctive relief without full disclosure is deprived of any advantage he may thereby have derived; x) Whether or not the non-disclosure was innocent is an important consideration, but not necessarily decisive. Immediate discharge (without renewal) is likely to be the court’s starting point, at least when the failure is substantial or deliberate. It has been said on more than one occasion that it will only be in exceptional circumstances in cases of deliberate non-disclosure or misrepresentation that an order would not be discharged; xi) The court will discharge the order even if the order would still have been made had the relevant matter(s) been brought to its attention at the without notice hearing. This is a penal approach and intentionally so, by way of deterrent to ensure that applicants in future abide by their duties; xii) The court nevertheless has a discretion to continue the injunction (or impose a fresh injunction) despite a failure to disclose. Although the discretion should be exercised sparingly, the overriding consideration will always be the interests of justice. Such consideration will include examination of i) the importance of the facts not disclosed to the issues before the judge ii) the need to encourage proper compliance with the duty of full and frank disclosure and to deter non-compliance iii) whether or not and to what extent the failure was culpable iv) the injustice to a claimant which may occur if an order is discharged leaving a defendant free to dissipate assets, although a strong case on the merits will never be a good excuse for a failure to disclose material facts; xiii) The interests of justice may sometimes require that a freezing order be continued and that a failure of disclosure can be marked in some other way, for example by a suitable costs order. The court thus has at its disposal a range of options in the event of non-disclosure. (See in particular Memory Corporation plc and another v Sidhu and another (No 2)[2000] 1 WLR 1443 at 1454 and 1459; Behbehani v Salem[1989] 1 WLR 723 at 735 and 730; Congentra AG v Sixteen Thirteen Marine SA (The Nicholas M)[2008] EWHC 1615 (Comm) ; [2009] 1 All ER (Comm) 479 at [62]; Bank Mellat v Nikpour[1985] FSR 87 at 89 and 90; Kazakhstan Kagazy plc v Arip[2014] EWCA Civ 381 ; [2014] 1 CLC 451 at [36] and [42] to [46]; Todaysure Matthews Ltd v Marketing Ways Services Ltd[2015] EWHC 64 (Comm) at [20] and [25]; JSC BTA Bank v Khrapunov[2018] UKSC 19 ;[2018] 2 WLR 1125 at [71] and [73]; Banca Turco Romana SA v Cortuk[2018] EWHC 662 (Comm) at [45]; PJSC Commercial Bank PrivatBank v Kolomoisky and others[2018] EWHC 3308 (Ch) at [72] and [73] to [75]; National Bank Trust v Yurov[2016] EWHC 1913 (Comm) at [18] to [21]); Microsoft Mobile Oy v Sony Europe Ltd[2017] EWHC 374 (Ch) at [203].)”
“30. Although this was said in the context of an application for a freezing order, the principles are of general application. I would draw particular attention, as relevant in the present case, to the fact that the overriding consideration when deciding whether to continue an injunction or grant a fresh injunction despite a failure of disclosure is the interests of justice; and to the need to maintain a due sense of proportion in complex cases. This latter point was made by Mr Justice Toulson in Crown Resources AG v Vinogradsky (15 June 2001 ) and was adopted by the Court of Appeal in Kazakhstan Kagazy Plc v Arip[2014] EWCA Civ 381 , [2014] 1 CLC 451 at [36]: '… where facts are material in the broad sense in which that expression is used, there are degrees of relevance and it is important to preserve a due sense of proportion. The overriding objectives apply here as in any matter in which the Court is required to exercise its discretion. … I would add that the more complex the case, the more fertile is the ground for raising arguments about non-disclosure and the more important it is, in my view, that the judge should not lose sight of the wood for the trees. … In applying the broad test of materiality, sensible limits have to be drawn. Otherwise there would be no limit to the points of prejudice which could be advanced under the guise of discretion.' 31. A further point which merits emphasis is that even when there has been a failure of full and frank disclosure, the interests of justice may sometimes require that a without notice order be continued and that a failure of disclosure be marked in some other way, for example by a suitable costs order. A court needs to consider the range of options available to it in such an event.”
“The point was made that I should consider materiality when assessing information put forward to Lavender J. That is, of course, correct. This involves an assessment of the degrees of relevance of the evidence and a due sense of proportion. There need to be sensible limits on what is presented; this was not a matter where evidence was presented to Lavender J over a four week hearing where every stone could be unturned. The obligation was, however on the claimant, to fairly present the situation. It filed a bundle of some 1,322 pages which Lavender J could not possibly have been expected to read in full. It was for the claimant to highlight all the material matters. As the claimant had been heavily involved in this dispute involving some 30 court hearings in the BVI, Luxembourg and Scotland it should have been intimately engaged with all the evidence; it had no excuse for any failure to identify critical issues or present them fairly”
“In summary: 1. The situation regarding the timing and urgency was absolutely not as presented. 2. The position of the tenth defendant and its role and connections to furth and ninth defendants were not presented in a full and frank way; 3. The different actions taken by the different defendants throughout the litigation were not identified to the court; 4. The situation regarding the€7,000,000 that was held in the company was not presented in a fair manner and, indeed, the references to€7,000,000 either accidentally or otherwise, were allowed to be confused in front of Lavender J such that the source of the investment of the€7,000,000 into CSM could easily be construed as having come from the money that actually was subject to the freezing order; 5. Lavender J was not given the full facts about the regulatory history of the fourth, ninth, or tenth defendants and, indeed, was given a version that was significantly different from the truth. It is not as if the situation was not mentioned. It was positively mentioned in an adverse manner; 6. Material facts were omitted regarding Mr Taher and MultiBank and their regulatory history and non-compliance with court orders; and 7. The status and parties to the BVI proceedings were not fairly presented at all. I have referenced other matters that were not entirely accurately presented and Mr McGrath addressed me, as did Miss Hutton, in relation to a number of those. They are, in my judgment, by definition less material but, nevertheless, add to the overall picture.”
“120. It seems plain to me that the information put forward before Lavender J was not full and frank. It was, in my judgment, partial and partisan. It was, in relation to these defendants, substantially misleading both in itself and by omission. It seems to me that the inevitable consequence is that this freezing order should not be renewed. The misstatements fall easily into the category of substantial. I do not need to decide whether they were deliberate but there must be serious questions on that given the length of time the claimant was in possession of the information before putting their case forward and the degree to which the way it was put forward did not correspond to the full and frank facts. I repeat my previous observation that the solicitors and counsel appearing before me were not the ones who appeared in the ex parte hearing.”
“Pulling the strands together, I am satisfied on the facts in this case and the current state of the law that the Noteholders had a good arguable case when VDHI applied for the WFO based on evidence before Jack J at the Stage 1 hearing and the undertakings offered by VDHI. Further, that VDHI had standing to bring these claims in its own right and on behalf of the Noteholders, a situation that was reinforced by the grant of the representation order on21st July 2021 . Finally, at least some of the claims asserted by VDHI in the claim form and statement of claim can result in a judgment for the payment of specific sums of money and therefore qualify as money claims for the purpose of applying for a freezing injunction. There is no basis to interfere with Jack J’s finding that VDHI has shown a good arguable case of fraud. This takes me to the risk of dissipation.”
“90. During the BVI Litigation, Jack J made adverse findings against MBFX and Naser in a judgement dated4 October 2011 (p.p 727 to 789 of MEXl). However, MBFX made a successful application, supported by an affidavit of Naser (p.p 790 to 815 of MEXl), to the Court of Appeal in the BVI to recuse Jack J, on the basis of apparent bias by Jack J against MBFX and Naser Taher. The recusal Judgment of the Court of Appeal can be seen at (p.p 870 to 891 of MEXl).”
“16. Full and frank disclosure: adverse findings against MGWL and Mr Naser Taher were made, at an interim stage, in a judgment of Jack J in the BVI (p.727 of MEX1). However, that judgment itself led to Jack J being recused by the Eastern Caribbean Court of Appeal, on the basis of apparent bias against MGWL and Mr Naser Taser. While MGWL will prepare to address the Court further on this topic if required, its primary submission is that these interlocutory adverse comments do not have any material impact on the question of whether MGWL would comply with its cross undertaking in damages if required to do so in future.”
“100. The K2 report and its timing are therefore critical. Lavender J was told that the instruction to K2 was effectively in August 2023. That was fundamentally untrue and completely misleading. The K2 report was prepared originally, and in substantially the same form as the final version, in March 2022, if not earlier. In other words, over 18 months before the exparte hearing. The draft K2 reports were included in the ex parte hearing bundle, but without the cover pages that showed the dates on which they were produced. The defendants say that was deliberate and intended to hide the true date. I do not need to make a decision on that and in the interest of time do not do so.”
“The K2 report was prepared to discover things that the parties it was investigating may have done improperly. It was not created for the purpose of creating an objective assessment of the situation of the defendants. That, however, is precisely what the advisors in this litigation to the claimant should have presented to Lavender J.”
“And you see their reference to22 April 2021 , where there are calls and discussions taking place, and then: “Moreover, in this email VDH attached a portfolio summary showing that ...” 3.6 and then 3.4 million in an 18-month period or in a 18-month bond were invested. That is the money which we say by inference gives rise to the suggestion of bribe. The reference there within the affidavit to pages 519-524 in fact is probably better to be amended to 526…That’s where the figure of$7 million comes from, my Lord, and it’s that money which, by inference had no good reason to be going to CSM.”
“Whilst the question of locus standi is obviously important, the practical reality is that the claims on which the WFO is based would, on any view, be controlled and funded by MGWL as the ultimate holding company in the MultiBank group.”