“In the light of the authorities Mr Béar has put before me, I am not going to impose a cap. I do understand the point that this is quasi-proprietary but particularly David Richards J’s judgment proceeds on the basis that a clear line is to be drawn between true proprietary injunctions and non-proprietary injunctions and everything else. Kea does not have a claim, as matters stand, to the money in this pot. What it does is have a claim under which it seeks to execute against that, which is not quite the same, and as David Richards J said, it is important that there should be consistency of approach and, in the light of that, I won’t impose a cap and Ivory Castle may spend up to a reasonable amount on legal representation, which I assume includes legal advice because I don’t see why counsel should be paid and not solicitors.”
“The remaining question is whether it should extend to Mr Gibson’s legal advice and representation, and I do propose to allow Ivory Castle to spend money on his advice and representation. In practical terms, this is a pot of money which has been available to him on his case and it does seem to me that it would be invidious to seek to draw [a] distinction between Ivory Castle and Mr Gibson in circumstances where the reality is that the fight is between Kea on the one hand and Mr Gibson on the other. So I will extend it to legal advice and representation for Ivory Castle and Mr Gibson but I will confine it to these proceedings.”
“6. (1) Ivory Castle must forthwith instruct Aegean General Partner Limited (“Aegean GP”), a company incorporated in Guernsey, that until further notice all sums due or payable or available to be paid by Aegean Limited Partnership, a Guernsey limited partnership (“Aegean LP”), to Ivory Castle shall be retained by Aegean LP or, if Aegean GP is unwilling or considers itself unable to cause Aegean LP to retain such sums, paid into court in England and Wales to the credit of this action. (2) Ivory Castle must not give notice to Aegean GP to vary the instruction required by paragraph 6(1) above except pursuant to a further order of this court.”
“7. Without prejudice to paragraph 6 above, until trial or further order of the court: (1). Ivory Castle must not, without giving 14 days’ notice in writing to Farrer & Co: (a). remove from England and Wales any of its assets which are in England and Wales except in accordance with paragraph 10 below; or (b). in any way dispose of, deal with or diminish the value of its assets whether they are in or outside England and Wales except in accordance with paragraph 10 below.”
“12. (1) Ivory Castle may spend a reasonable amount on legal representation and advice for Ivory Castle and Mr Gibson in relation to these proceedings and any proceedings which may be taken pursuant to the permission given in paragraph 19(3) below and may also spend a reasonable amount on Ivory Castle’s proper professional and administrative costs including directors’ fees provided that (i) Ivory Castle must inform the claimant's solicitors where the money is to come from, and (ii) Ivory Castle’s solicitors must certify that the costs and expenses to be paid, including the costs and expenses of any agents or professionals instructed by them, have been actually, reasonably and properly incurred.” 19(3) below and may also spend a reasonable amount on Ivory Castle’s proper professional and administrative costs including directors’ fees provided that (i) Ivory Castle must inform the claimant's solicitors where the money is to come from, and (ii) Ivory Castle’s solicitors must certify that the costs and expenses to be paid, including the costs and expenses of any agents or professionals instructed by them, have been actually, reasonably and properly incurred.”
“The purpose of the freezing order is no long[er] to protect a fund which HMRC claims belongs to it, but to prevent the disbursement of a fund against which HMRC will or may be able to enforce a judgment if it succeeds in some or all of its personal claims.”
“First, whatever their source, HMRC has no proprietary interest in these assets. The use of the term quasi-proprietary seeks to give a flavour which is not present.”
“I do not see why those claimants are less deserving of protection than claimants in the present type of case. By drawing a clear line between proprietary and nonproprietary claims the courts have created a principled distinction. There is no proper basis for a further sub-category of the sort for which Mr Chivers contends.”
“In these proceedings relating to the EFG account and the money within it, the Bank seeks as part of its claim, a receivership order over the funds if it succeeds in its contention that they remain beneficially owned by Mukhtar, by way of equitable execution of the judgments against him.”
“10 On behalf of the Bank, Mr Jones QC has submitted in his written skeleton that the position is more analogous to that in which a respondent to a freezing order seeks to be permitted to use funds in respect of which the applicant has a proprietary claim. The Bank does not in this case advance a case that it has a proprietary interest in the funds, although it does contend that they derived from the frauds practised on it by Mukhtar. The Bank accepts for present purposes that Mukhtar was the beneficial owner of the money in the EFG Geneva account when it was transferred to the EFG London account. Nevertheless, it is submitted, if the Bank is proved right in its claim that Mukhtar retained and retains the beneficial interest in the money, it should be and will be available to the Bank in part-satisfaction of the Bank’s judgment against Mukhtar. Therefore, it is submitted, to allow Madiyar to spend the money pending resolution of the issue would be to allow Madiyar to dissipate a fund to which the Bank is arguably now entitled by way of equitable execution of a judgment debt. The position, therefore, it is said, is analogous to that in which a claimant arguably has a proprietary interest in a fund which the defendant wishes to deplete pending the determination of the issue. 11 In my view, these submissions of Mr Jones are well founded. The principles in such cases of a proprietary claim are well established. Where there are assets which may belong to the claimant, the court will not allow those funds to be used for living expenses or legal costs unless the defendant has shown, by full and frank evidence that he does not have, or have access to, any other funds or asset which can be used for those purposes. If he does he must use such other funds or assets first. That is the threshold requirement which must be satisfied by a defendant in the case of a proprietary claim. If that threshold requirement is met, then the court has to carry out a balancing exercise.”
“A debtor is not obliged to keep his assets intact to meet a possible claim by a claimant and can continue to spend them in the ordinary course of business or on his ordinary living expenses, but he is not at liberty to dissipate them so as to render a judgment unenforceable, or indeed to dissipate them if that would be the effect.”
“Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue.”
“Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston's Case (1776) 20 St Tr 355. “Issue estoppel” was the expression devised to describe this principle by Higgins J in Hoysted v Federal Commissioner of Taxation(1921) 29 CLR 537 , 561 and adopted by Diplock LJ in Thoday v Thoday[1964] P 181 , 197–198.”
“If in litigation upon one such cause of action any such separate issue as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.”
“The final resolution of a dispute between parties as to their respective legal rights or duties may involve the determination of a number of different “issues,” that is to say, a number of decisions as to the legal consequences of particular facts, each of which decisions constitutes a necessary step in determining what are the legal rights and duties of the parties resulting from the totality of the facts. To determine an “issue” in this sense, which is that in which I shall use the word “issue” throughout this judgment, it is necessary for the person adjudicating upon the issue first to find out what are the facts…”
“In the case of litigation the fact that a suit may involve a number of different issues is recognised by the Rules of the Supreme Court which contain provision enabling one or more questions (whether of fact or law) in an action to be tried before others. Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined.”
“Abuse of process – the law 12. Mr Stewart QC, who appeared for the Claimants, submitted that in the circumstances it was an abuse of process for the Defendants, having voluntarily withdrawn the first application, to bring a second application on effectively the same grounds. He relied on the principle known as the rule in Henderson v Henderson (1843) 3 Hare 100, as interpreted by Lord Bingham in Johnson v Gore Wood[2002] 2 AC 1 at 31, where he referred to a: “broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing on the question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.” 13. In Chanel Ltd v F W Woolworth & Co Ltd[1981] 1 WLR 485 (“Chanel”), the plaintiffs, in an action for trade mark infringement and passing-off, obtained ex parte interlocutory injunctions; on the inter partes hearing the defendants felt constrained to give undertakings and by consent the motion was stood over to trial (without being opened or the evidence read) on the defendants giving undertakings “until judgment or further order”
“The defendants are seeking a rehearing on evidence which, or much of which, so far as one can tell, they could have adduced on the earlier occasion if they had sought an adjournment, which they would probably have obtained. Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter. The fact that he capitulated at the first encounter cannot improve a party's position.” 14. In Woodhouse v Consignia plc[2002] EWCA Civ 275 , a claimant who had unsuccessfully sought to lift a stay applied to do so a second time, and both the district judge and judge held that he could not have a second bite at the cherry. The Court of Appeal allowed an appeal. Brooke LJ, giving the judgment of the Court, said that there was a public interest in discouraging a party from making a subsequent application for the same relief based on material which was not, but could have been, deployed in the first application; that one of the reasons was the need to protect respondents to successive applications from oppression [55]; but that although the policy that underpins the rule in Henderson v Henderson had relevance as regards successive pre-trial applications for the same relief: “it should be applied less strictly than in relation to a final decision of the court, at any rate where the earlier pre-trial application has been dismissed.” [56] circumstances it was an abuse of process for the Defendants, having voluntarily withdrawn the first application, to bring a second application on effectively the same grounds. He relied on the principle known as the rule in Henderson v Henderson (1843) 3 Hare 100, as interpreted by Lord Bingham in Johnson v Gore Wood[2002] 2 AC 1 at 31, where he referred to a: “broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing on the question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.” “The defendants are seeking a rehearing on evidence which, or much of which, so far as one can tell, they could have adduced on the earlier occasion if they had sought an adjournment, which they would probably have obtained. Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter. The fact that he capitulated at the first encounter cannot improve a party's position.” “it should be applied less strictly than in relation to a final decision of the court, at any rate where the earlier pre-trial application has been dismissed.” [56] He then gave an example where an application for summary judgment under CPR Pt 24 had been dismissed, but a second application was made based on evidence that, although available at the time of the first application, was not then deployed through incompetence, but which was conclusive; the second application ought to be allowed to proceed [57]. The district judge and judge had therefore been wrong to regard the fact that the second application was a second bite at the cherry as decisive [58], and the Court of Appeal proceeded to consider the second application on its merits, regarding the fact that it was a second bite at the cherry as an important factor [61], but in the event decided that it would be a disproportionate penalty for the claimant to lose his right to damages due to a pardonable mistake by his solicitor, and lifted the stay [63]. 15. In Orb a.r.l. v Ruhan[2016] EWHC 850 (Comm) Popplewell J had to deal with a number of applications arising out of a freezing order made by Cooke J which had been obtained by the defendant (Mr Ruhan) against the claimants (the Orb Parties) [1]-[2]. The order required Mr Ruhan to fortify his cross undertaking in damages by charging certain shares [48]. Mr Ruhan had done so but the Orb Parties sought further fortification on the ground that the shares were inadequate security. Popplewell J dismissed the application for a number of reasons, the first of which was that it was open to the Orb Parties to take the point before Cooke J but they had failed to do so. None of the material relied on had come to their attention subsequently; Cooke J had given them an opportunity to raise any objections to the shares as fortification, but they had not raised the points now sought to be raised, although they were well known to them; there had been no significant or material change of circumstances [81]. Popplewell J continued [82]: “That is fatal to this ground for discharge: see Chanel Ltd v FW Woolworth & Co Ltd[1981] 1 WLR 485 . Mr Drake emphasised that that case involved a consent order. But the principle is well established, and often applied, in relation to contested interlocutory hearings. It is that if a point is open to a party on an interlocutory application and is not pursued, then the applicant cannot take the point at a subsequent interlocutory hearing in relation to the same or similar relief, absent a significant and material change of circumstances or his becoming aware of facts which he did not know and could not reasonably have discovered at the time of the first hearing. It is based on the principle that a party must bring forward in argument all points reasonably available to him at the first opportunity; and that to allow him to take them serially in subsequent applications would permit abuse and obstruct the efficacy of the judicial process by undermining the necessary finality of unappealed interlocutory decisions.” 16. Mr Stewart also referred to a judgment of Etherton C in this action, Holyoake v Candy[2016] EWHC 1718 (Ch) . The Claimants had initially applied for a notification injunction, making the decision not to apply for a freezing injunction. I granted that application in a modified form. The Claimants then applied for a freezing order after all. It was that application which came before the Chancellor. He dismissed it. The Claimants’ counsel, Mr Trace QC, had submitted that all that he needed to show was the usual prerequisites for a freezing order, namely a good arguable case on the merits, a real risk of dissipation and that the balance of convenience favoured the grant of the order [18]. The Chancellor disagreed, saying [21]: “I do not agree with Mr Trace’s statement of principle. The starting point in such a case as the present is that the claimants must point to something that has happened since the grant of the original order. They must show something material has changed to make it appropriate to investigate the same issues over again at yet another extensive hearing with even more voluminous evidential material. Absent any such change, the application for a freezing order is not only a disproportionate call on the court's resources, but an abuse of the court’s process, in effect making successive applications for the same objective but testing the court's willingness each time to see how far the court will go, each such application involving, to a greater or lesser extent, duplication of issues, evidence and arguments.”
“25. From these authorities it seems to me, firstly, that the court has a discretion to vary an order including an injunction if there has been a material change of circumstances. Secondly, the test as whether a change in circumstances is material is not easily defined. A new argument is not sufficient; nor are facts that could have been adduced on the prior hearing. Thirdly, it seems to me obvious that there must be some causal connection between the circumstances in issue and the injunction granted, and between the change in circumstances and the reasons for varying the injunction, in order for the change to be material. It is not sufficient that a change in circumstance may lead a different judge to reach a different conclusion. Rather, the question I should ask myself is whether the change in circumstance is such that it seems to me either that Slade J would have reached a different conclusion or that it is such that in my judgment the injunction must be varied. In asking myself those questions, I must be wary of falling into the trap of treating this as an appeal against the decision of Slade J, which is a matter for the Court of Appeal.”