Karan Anil Chanana v Anzhelika Khan [2025] EWHC 1472 (Ch)

[2025] EWHC 1472 (Ch)Case No BR-2024-000601
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANIES LIST (ChD)
IN THE MATTER OF KARAN ANIL CHANANA
AND IN THE MATTER OF THE INSOLVENCY ACT 1986
Venue Rolls Building Royal Courts of Justice, 7 Rolls Buildings London EC4A 1NLDate 3 June 2025
Before
INSOLVENCY AND COMPANIES COURT JUDGE GREENWOOD
Between
KARAN ANIL CHANANAApplicantANZHELIKA KHANRespondent
Mr Hugo Page KC (instructed by Bower Cotton Hamilton) for ApplicantMr Jonathan Crystal and Mr Bibek Mukherjee (instructed by W Legal Solicitors) for RespondentHearing date 22 May 2025
JUDGMENT (APPROVED TRANSCRIPT)WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.ICC JUDGE GREENWOOD:

Introduction

[1]This is an application made under rule 10.4 of the Insolvency (England and Wales) Rules 2016 (“the IR 2016”) to set aside a statutory demand dated 26 June 2024. The demand was for payment of unpaid rent (and contractual interest) totalling £850,958.41, made up of a principal amount of £791,000 plus interest of £58,958.41 (up to the date of the statutory demand) in respect of the period between 20 October 2022 and 20 April 2024.[2]The Respondent is the landlord and the Applicant the tenant of Flat F&G, 86 Eaton Square, London SW1W 9AG under a 3 year fixed-term Tenancy Agreement dated 22 December 2021. The rent reserved is £37,700 per month, payable quarterly on the 20th day of each quarter.[3]On 21 April 2022, the Respondent became a designated person under the Russia (Sanctions) (UK Exit) Regulations 2019 (“the UK Regulations”).[4]In those circumstances, in support of his application, the Applicant relied on three points. 4.1. First, he said that he is prohibited from making payment to the Respondent due to the UK Regulations because she is a designated person. 4.2. Second, that even if not prohibited, he failed to pay because he reasonably believed himself to have been prohibited, and so by virtue of section 44 of the Sanctions and Money Laundering Act 2018 (“SAMLA”) is excused from payment, or at any rate the demand should be set aside, because he cannot be liable to any civil proceedings to which he would have been liable (in respect of his failure to pay) had it not been for that provision. 4.3. Third, that £678,600, part of the sum demanded, is held by his solicitors on an undertaking to pay the Respondent’s solicitors on receipt of either a permission from the Office of Financial Sanctions Implementation (“OFSI”) or a suitable court order to the effect that payment is permitted, such that his payment obligation is to that extent secured (and that to the extent unsecured, is subject to a genuine and substantial counterclaim under the lease).[5]On one or more of those bases, the Applicant sought to set aside the demand on grounds that under rule 10.5 of the IR 2016, the Respondent holds security, or that the debt is disputed, or that on “other grounds” the demand ought to be set aside. The First Argument[6]As to first of those arguments, the point ultimately was a short one of construction regarding which there was no good reason, even on an application of this summary nature, not to reach a conclusion.[7]The Respondent became a designated person under the UK Regulations on 21 April 2022.[8]The scheme of SAMLAand of the UK Regulations was summarised by the Court of Appeal in NBT v Mints[2023] EWCA Civ 1132; [2024] KB 559 at [4]-[20]. Against that background, it was explained that following Brexit, the UK needed to introduce a new sanctions regime to implement that which had been contained previously in an EU regime. That new regime was contained in SAMLA. The Court of Appeal in Mints said at paragraph [189] that SAMLA and the Regulations made under it “were intended by Parliament and the Government to continue the EU sanctions regime without any substantive change,” and that although the UK Regulations as enacted do not simply replicate the EU regime but differ from it in terms of their language and complexity, “the differences are to be explained as putting the same thing differently.” The same point was made at paragraph [193]. The court thereby specifically rejected the appellants’ argument in that case that Parliament had deliberately made changes to the wording of the Regulations so that what was enacted had a different meaning from the EU regime in certain important respects.[9]Even if incorrect to say that in every respect, necessarily, the UK Regulations must be to the same effect as the EU regime on which they were based, it seems to me that without some compelling reason to think otherwise, and assuming that outcome to be possible as a matter of legislative language, the UK Regulations should be treated and construed as having implemented a scheme to the same effect as that which it succeeded. I do not accept the submission made by Mr Page KC (on behalf of the Applicant) that the premise of the Court of Appeal’s conclusions in Mints was confined only to the particular feature of the UK Regulations in issue in that case; there was nothing in the court’s reasoning to support that submission; on the contrary, its conclusion that the UK Regulations were intended to achieve continuity with what had gone before was expressed in broad and essentially unqualified terms.[10]Regulations 11 to 15 of the UK Regulations set out asset-freezing and other restrictions in respect of “funds” and “economic resources” (as defined at section 60 of SAMLA).[11]Regulations 12 and 13 prohibit the making available of funds to a designated person or for the benefit of a designated person as follows: 12(1) A person (“P”) must not make funds available directly or indirectly to a designated person if P knows, or has reasonable cause to suspect, that P is making the funds so available. … 13(1) A person (“P”) must not make funds available to any person for the benefit of a designated person if P knows, or has reasonable cause to suspect, that P is making the funds so available.[12]It was common ground that to pay rent to or for the benefit of a person would be to make funds available to or for the benefit of that person. A contravention of either Regulation 12(1) or 13(1) is a criminal offence.[13]Regulations 12 and 13 are subject to Part 7 (Exceptions and Licences). The OFSI Guidance (Financial Sanctions General Guidance) explains at paragraph 6 that:
“A licence is a written permission from OFSI allowing an act that would otherwise breach prohibitions imposed by financial sanctions. An exception to a prohibition applies automatically in certain defined circumstances as set out in the regulations and does not require you to obtain a licence from OFSI.”
[14]Regulation 64(1) states that the prohibitions in Regulations 11-15 do not apply to anything done with the authority of a licence issued by the Treasury (which acts through OFSI). The relevant licensing purposes are set out at Schedule 5 to the UK Regulations.[15]Regulation 58(5) contains the exception potentially relevant for the purposes of the present proceedings in the following terms:
“(5) The prohibitions in regulations 12 and 13 are not contravened by the transfer of funds to a relevant institution for crediting to an account held or controlled (directly or indirectly) by a designated person, where those funds are transferred in discharge (or partial discharge) of an obligation which arose before the date on which the person became a designated person.” (Emphasis added.)
[16]Under that Regulation the account to be credited must be held or controlled (directly or indirectly) by a designated person. That point explains why it was that in the present case, payment to, for example, the Respondent’s solicitors’ account would not be exempted, even if the other elements of the provision were satisfied.[17]The European legislation on which Regulation 58(5) was based is contained in Article 7(2)(b) of EU Regulation 269/2014. This (along with Article 2) provided that: Article 2 1. All funds and economic resources belonging to, owned, held or controlled by any natural persons or natural or legal persons, entities or bodies associated with them as listed in Annex I shall be frozen. 2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural persons or natural or legal persons, entities or bodies associated with them listed in Annex I. … 7(2). Article 2(2) shall not apply to the addition to frozen accounts of: …: (b) payments due under contracts, agreements or obligations that were concluded or arose before the date on which the natural or legal person, entity or body referred to in Article 2 has been included in Annex I; …[18]In this regard, there is therefore a difference between the language of the two exemptions. Specifically, the UK Regulations refer to the discharge of an obligation which arose before designation, whereas the EU Regulation refers to “payments due under contracts, agreements or obligations that were concluded or arose before the date” of designation.[19]The question therefore in the present case was whether or not the payment of rent due under the lease – a lease made before the Respondent’s designation – would be for these purposes a payment in discharge of a pre-designation obligation, in circumstances where the relevant sums only fell due for payment after designation.[20]Mr Page argued that the relevant obligations only arose when, from time to time, rent fell due for payment, and that such was the natural and ordinary meaning of the words in the Regulation, from which there was no reason to depart; he pointed out that before then, the Respondent could not have sued for payment, and indeed, that future payments might never have fallen due, because of some intervening event, such as forfeiture, or surrender, or the destruction of the premises. Mr Crystal and Mr Mukherjee, for the Respondent, contended otherwise, that for these purposes, the relevant obligation arose before designation, when the lease was made in December 2021.[21]Although counsel for the Respondent sought to find some support for their argument in the decision of Deputy ICC Judge Parfitt in Thomas & Others v PJSC National Bank Trust [2025] EWHC 75, I did not find that case to be of any particular assistance in respect of the present issue.[22]In that case, the question concerned payment of a dividend in bankruptcy to a Russian bank. However, in respect of Regulation 58(5), at [51], the judge held that because the original payment obligations, and the bankruptcy order, both pre-dated the earliest possible date of designation, the exemption would apply. He concluded that the latest source of the obligation being satisfied when a distribution is made in bankruptcy is the bankruptcy order which pooled the interests of the bankrupt’s creditors and changed the character of the payment obligation into a right of participation in the collective process. He did not decide (because he had no need to decide) whether the prior, original obligation would also continue to count as an obligation being discharged. Essentially, he held that either the obligation being satisfied was not an obligation that arose on the declaration of a dividend (insofar as that circumstance created an obligation at all) or that if it was, it was not the only relevant obligation.[23]Mr Mukherjee proposed a similarity between the nature of the obligation arising on the making of a bankruptcy order, and the nature of the payment obligation arising on entry into a lease. Without further argument, I was not persuaded that those obligations are of a similar character, although certainly neither is a present obligation to pay, but in any event, the judge in Thomas had no need to decide whether the relevant obligation was that which arose on bankruptcy, which may be described as conditional, or that which arose before then, which was certainly unconditional; all he decided was negatively, that if the declaration of a divided created an obligation at all (which he held to be questionable, at best) it was not the only obligation discharged on payment of a dividend. That conclusion does not assist materially in the present case.[24]However, nonetheless, in my judgment, payment of rent by the Applicant in the present case would fall within the exception created by Regulation 58(5), for the following reasons. 24.1. First, as I have said, unless there is some good and compelling reason not to do so, I would construe the UK Regulations consistently with those which they succeeded, and which they have been said to intend to replicate; were the EU Regulations still applicable, the exception would certainly apply, because the contract was made pre-designation. 24.2. Second, beyond what was said about the language itself, there was no obvious reason to consider that the exception was intended to have a different or narrower scope; it seems to me that both were essentially intended to allow for payments in discharge of obligations the source of which pre-dated designation. 24.3. Third, the language of Regulation 58(5) is not inconsistent with the achievement of that purpose: the Applicant’s obligation did arise before designation – it was an obligation created by the lease; there is no good reason to narrow the words of the legislation. In the context of a debt arising under a contract, I would construe the words of the Regulation to mean either that the payment obligation arose when the contract was made, even if at that time, it was prospective or contingent, or to the same effect, that it is the date of the contractual source of the obligation which is material. Even if one aspect of the nature or character of the obligation might change over time, it remains, for present purposes, an obligation which was created and arose when the contract was made. 24.4. Fourth, although there is no need to attach any great weight to this indication, such as it is, the OFSI Guidance at paragraph 6.1 is consistent with that conclusion: it refers to obligations that were concluded or arose before designation, and therefore tends to suggest a reading of “obligation” sufficiently broad to encompass “contract”. That paragraph reads: Crediting Frozen Accounts Asset freezing legislation permits without a licence: … a person to transfer funds to a relevant institution for crediting a frozen account where those funds are transferred in discharge (or partial discharge) of obligations that were concluded or arose before the date the person became a designated person.[25]Finally, I should add that I do not accept Mr Page’s argument that [196] of Mints showed the Court of Appeal to have considered Regulation 58(5) to be different from the similar provision in the EU Regulation: that paragraph was to the effect that payment under a post-designation judgment obtained in respect of a pre-designation obligation, was in discharge of that pre-designation obligation, and therefore within the exception properly understood; but there is no reason to think that the same result would not follow under the EU Regulation. The Court of Appeal referred to the words of the UK Regulations rather than the words of the EU Regulation because the UK Regulations were the applicable source of law. If anything, the conclusion at [196] supported the Respondent’s argument, that the court should identify the real source of the obligation in question, even in circumstances where it has itself been the source of some later obligation, as in the case of judgment on a cause of action. The Second Argument[26]The Respondent’s second argument was that the demand should be set aside by virtue of section 44 of SAMLA. That section reads as follows: Protection for acts done for purposes of compliance(1) This section applies to an act done in the reasonable belief that the act is in compliance with— (a) regulations under section 1, or (b) directions given by virtue of section 6 or 7.(2) A person is not liable to any civil proceedings to which that person would, in the absence of this section, have been liable in respect of the act.(3) In this section “act” includes an omission.[27]As to its meaning and effect, the parties referred to the decision of the Court of Appeal in Celestial Aviation Services Ltd v UiniCredit Bank AG (London Branch) [2025] 1 WLR 196. Although obiter, the court explained at [75]-[76] and [85-90] that the purpose of section 44 is to ensure that a person is not pressurised into doing something that risks breaching sanctions by a fear of being exposed to civil claims; it is concerned to protect against a liability which is created as a result of something done or not done in the reasonable belief that it is in compliance with a sanctions regulation. It is not however concerned to protect against pre-existing liabilities. Falk LJ (with whom Males and Snowden LJJ both agreed) said at [88]-[90]:88. The most obvious example of proceedings to which s.44 would apply is proceedings seeking compensation for loss that has been caused by action taken, or not taken, in the reasonable belief that it was in compliance with regulations made under s.1 of SAMLA. For example, a seller may be concerned that a failure to deliver goods could expose it to claims from the buyer for loss of profit and/or to recover amounts for which the buyer becomes liable to its own customers. Section 44 would protect the seller from a claim for damages, provided that the belief that the supply would be sanctioned was a reasonable one.89. It is far less apparent that s.44 should protect a debtor from an action to recover a debt which is otherwise lawfully due but which has not been paid in the reasonable belief that its payment would be in breach of sanctions. Absent sanctions, the debtor would expect to have to pay that sum in the normal course. Exposure to a claim to recover it is not a new financial exposure which might pressurise payment. It is a pre-existing liability. The mischief at which s.44 is aimed (as confirmed by the Explanatory Notes) is not present.90. The wording of s.44 also supports an interpretation that would allow proceedings to recover a debt. This is because a claim for debt is just that: it seeks payment of the debt. While the inevitable trigger for the claim is that the debtor has not paid, the action is not an action for the non-payment as such (which is the relevant omission for s.44 purposes) and can therefore be said not to be "in respect of" it. Rather, it seeks recovery of an amount which is owed irrespective of any action or inaction in purported compliance with sanctions.[28]In principle, in my judgment, the section could therefore provide protection against insolvency proceedings based on a failure to pay a debt. In such a case, what is sought by the creditor is not mere payment or enforcement of the debt, but something more, an important additional element of which is, in substance, proof of the debtor’s failure to pay the debt when due, despite demand, which is the basis upon which the court might hold that he is insolvent, and thus liable to the collective process of bankruptcy. In other words, in the case of bankruptcy proceedings, unlike the case of proceedings on or to recover a debt, the fact of non-payment as such is material to the case and to the outcome. Put simply, a person cannot be said to be insolvent and made bankrupt because of his failure to pay a debt in circumstances where his very failure to pay the debt was a result of his reasonable belief that payment would be in breach of the Regulations.[29]However, that does not mean that in the present case, if the Applicant did indeed act in the reasonable belief that that he was acting in accordance with the Regulations, the demand should be set aside. That is because service of a statutory demand, unlike presentation of a petition, is not in itself the commencement of civil proceedings; it is a means by which, as a prelude to proceedings, the creditor can establish that the debtor should be regarded as being unable to pay the debt in question or, if the debt is not immediately payable, as having no reasonable prospect of being able to pay the debt when it becomes due. That consequence, in turn, founds the ability of the creditor to present a bankruptcy petition because, under section 268(1) of the Insolvency Act 1986, in the absence of an unsatisfied return to execution or other process, a debtor's inability to pay the debt in question is established if, but only if, the appropriate statutory demand has been served and not complied with.[30]Thus, under rule 10.5(8) of the IR 2016, if an application to set aside is dismissed, the court “must” make an order authorising presentation of a petition either as soon as reasonably practicable, or on or after a specified date. Accordingly, in the present case, to protect the Respondent against the adverse consequences of a qualifying failure to pay the sum demanded, the court has the power to allow a period sufficient to compensate for that which has been lost by virtue of justified non-payment. In other words, he can be given the time of which he has been otherwise deprived.[31]Were it not for that power, and although there was no real argument regarding the scope of this provision, there would in my judgment be reason under rule 10.5(5)(d) of the IR 2016 to set aside a demand where a qualifying reasonable belief had been established, because a refusal to do so would otherwise immediately expose a debtor to proceedings in which his inability to pay the debt in question – in effect, his insolvency - had been established by the fact of his failure to meet the demand in circumstances in which he ought to be protected by the provisions of section 44.[32]Turning to the evidence in the present case, in my judgment it was not possible to conclude that the Applicant’s failure to pay was not the result of a reasonable belief that payment would be in breach of sanction; the existence of such a belief was at least arguable.[33]As to the Applicant’s subjective belief, it was stated in his witness statement made on 21 May 2025:
“When the Respondent was sanctioned I believed on the advice of my solicitors that it was unlawful to pay rent direct to the Respondent because she was a designated person for the purposes of the Sanctions and Anti-Money Laundering Act 2018 (SAMLA) and the Russia (Sanctions) (EU Exit) Regulations 2019 (the 2019 Regulations).”
[34]There has been no cross-examination, and I was not invited to conclude - and in any event, do not conclude - that nonetheless that evidence was so incredible or so far contrary to documents or accepted facts that the court could find, on this application, that it was not true: its truth was at least a matter that would be for a trial. The issue therefore was whether, objectively, it could be said that there were or arguably were reasonable grounds for that stated belief, on the assumption that it was in fact held.[35]As to that, there were, it seemed to me, at least some grounds which were not unreasonable: in particular, according to the Respondent’s evidence, that was the content of the legal advice he received; but in any event, given that the advice was not disclosed, the fact of the language of Regulation 58 being different from that of the EU Regulation, was enough in my judgment to comprise reasonable grounds. I do not accept that the argument that the obligations arose post-designation - in other words, the argument put by Mr Page - was so far-fetched as to be unreasonable. That is not to say that there was no reason or grounds to believe otherwise – for example, in particular, it was accepted that OFSI from its correspondence appeared to consider that this was not a case in which a licence could be provided, because the exemption automatically applied; in addition, as part of the process of discussion between the partes, the Applicant sought and in April 2024 (before the demand was served) was given an opinion from Ms Maya Lester KC, in which she too expressed the view that the exemption applied, albeit in briefly stated terms, and without reference to authority. Nonetheless, the fact that either belief might have been reasonably held does not mean that the other could not have been.[36]Finally in relation to section 44, a point arose regarding interest.[37]In Celestial at [91]-[98], Falk LJ said: 91. As already explained, the judge awarded interest at the US Prime rate under s.35A of the 1981 Act . This provision confers a statutory discretion in the following terms:
"(1) Subject to rules of court, in proceedings (whenever instituted) before the High Court for the recovery of a debt or damages there may be included in any sum for which judgment is given simple interest, at such rate as the court thinks fit or as rules of court may provide, on all or any part of the debt or damages in respect of which judgment is given, or payment is made before judgment, for all or any part of the period between the date when the cause of action arose and— (a) in the case of any sum paid before judgment, the date of the payment; and (b) in the case of the sum for which judgment is given, the date of the judgment." 92. As can be seen, s.35A provides a form of supplementary relief on a claim to recover a debt or damages at the discretion of the court, up to the date of payment or judgment if later. (It is of course separate from the interest that runs from the date of judgment, currently at 8%, under s.17 of the Judgments Act 1838 .) 93. It is notable that a claim for interest on a debt under s.35A is not independent of the claim for the underlying debt. Rather, the court's power to award interest arises in proceedings "for the recovery of a debt"
. On the basis that proceedings for recovery of the debt itself are not barred by s.44 (as to which see above) it logically follows that a claim which is no more than an adjunct of that, and has no independent foundation, should also not be barred. Effectively, it is an aspect of the single claim for a debt. I do not consider that it makes any difference that, as with other claims for interest, it is required to be pleaded under the court's rules ( CPR 16.4 ). The court's power under s.35A arises only on a claim for the debt. 94. This conclusion is consistent with the aim of an award of interest being to achieve restitutio in integrum. Without it, not only would the creditor be worse off but the debtor would obtain an unwarranted windfall. As with the principal amount of the debt, an entitlement to interest that would deprive a debtor of a windfall is not obviously within the mischief sought to be addressed by s.44 . 95. I would therefore conclude that s.44 does not prevent an award of interest under s.35A of the 1981 Act on a claim for debt. 96. I should add that it does not follow that all claims for interest would be in the same category. In particular, a claim for interest at a default rate provided for in a contract would give rise to different issues. A claim for default interest is much closer both to the mischief at which s.44 is aimed and the language, because the claim is for an amount due as a result of ("in respect of") the failure to pay. 97. Turning back to s.35A , there was some discussion in oral argument about whether exposure to an award under that provision could have the effect of exerting the sort of pressure that is intended to be alleviated by s.44 of SAMLA, bearing in mind that the usual focus in commercial cases is on the claimant's cost of borrowing, which may be higher than the defendant's cost of borrowing. 98. I do not consider that this point affects the analysis. The non-application of s.44 to awards of statutory interest on claims for debt is consistent with the language as well as the mischief sought to be addressed by s.44 . Moreover, it will be obvious to both parties that the court has a discretion not only as to whether to award interest but as to the rate. A debtor could reasonably expect the court to take all the circumstances into account, including the sanctions context, in deciding what award to make.[38]As to that, I reject the argument made by Mr Crystal and Mr Mukherjee, that by “default interest”, the court in Celestial was referring to interest in a particular amount, designed to compensate the creditor for loss, and avoid an unwarranted windfall in favour of the debtor. In my judgment, the court was clearly referring to interest arising by virtue of the contract, as sought in the present case, rather than interest by virtue of statute. If that is so - and I acknowledge that the passage in Celestial was obiter - a claim in debt for the interest element of the asserted debt in the present case would (or might) fail. Accordingly, that part of the asserted debt must be subject at least to a substantial dispute. The Third Argument[39]The Applicant’s final argument was that he had caused payment of £678,600 to be made to his solicitors, and that they had undertaken to pay that sum to the Respondent’s solicitors in the event of either an appropriate court order or a licence from OFSI, or an indemnity against the consequences of breach.[40]It was therefore said - albeit without reference to authority - that to this extent the debt was secured. I do not agree. The arrangement in question - which was unilateral and to which the Respondent at no point agreed - did not create any relevant security.[41]In particular, in an email which was sent by Mr Abhishek Khaitan on 3 December 2024, on behalf of the Applicant, to the Respondent’s solicitors, it was said: Dear Sirs I write further to our previous correspondence to clarify our firm’s position regarding the funds currently held in our client account and to address your query concerning the necessity of obtaining an OFSI licence in relation to these funds. As we have stated, the funds held in our client account remain the property of our client. He is neither a sanctioned individual nor subject to any legal restrictions concerning the management or disposition of their funds. The funds are held in accordance with a conditional undertaking provided by this firm which has not yet been triggered. Until such time as the conditions outlined in the undertaking are fully satisfied, for reasons we have comprehensively set out in prior correspondence they have not been met, ownership of the funds does not transfer to your client. Accordingly, the funds cannot be considered frozen ‘in an OFSI context’. There is no basis for treating them as subject to any regulatory restrictions under sanctions legislation, nor does this necessitate reporting to the OFSI. I trust this clarifies the position.[42]It follows that the arrangements, such as they were, had no proprietary consequences and were apparently not intended to have any such consequences, at any rate, pending the occurrence of one or other of the said contingencies. As to those contingencies, there was no prospect of a licence being provided: OFSI had confirmed in correspondence that they do not provide licences unless they consider that the act would otherwise be in breach, which in this case, they do not. Declaratory relief would however have been available in principle, and to that extent, the undertaking might have gained some greater substance. But in the meantime, it was a revocable personal undertaking. Were the Applicant to be made bankrupt, the sum in his solicitors’ account would fall to be distributed amongst all his unsecured creditors in the usual way; it was not hypothecated to payment of a single debt.[43]In the circumstances, there was no need to consider in any detail the final element of this argument, arising from proceedings in the Central London County Court, in which the Respondent has made a counterclaim based on the alleged failure of the Applicant to maintain the property, in the sum of £100,000.[44]I would however observe that the court was not shown evidence to substantiate a genuine arguable counterclaim, and that although pleaded, that in itself would not be enough to demonstrate its substantiality for present purposes. Conclusion[45]In conclusion therefore, in the circumstances, for the reasons explained above: 45.1. first, payment of the sum demanded by the Respondent would fall within the exemption in Regulation 58(5): it would be payment in discharge or partial discharge of a pre-designation obligation; 45.2. second, the debt is not secured; 45.3. third, although at least arguably, the Applicant’s failure to pay was the result of a belief held on reasonable grounds that payment would be in breach of the Regulations, the protection afforded by section 44 of SAMLA against the adverse consequences of that failure can be provided - in circumstances where I have held the exemption to be applicable - by virtue of an order that no bankruptcy petition should be presented for at least the period that would otherwise have been available for payment before presentation; 45.4. fourth, to the extent based on contractual interest, a claim in debt would be subject to a defence at least seriously arguable, and to that extent, a petition cannot be pursued.[46]Accordingly, the application to set aside is dismissed, but subject to an order under rule 10.5(8) of the IR 2016 that no petition is to be presented before the expiry of at least 21 days from today. Dated: 3 June 2025

Cited in 1 later judgment