Bridging Finance Inc v Anthony Lyons [2025] EWHC 1694 (Ch)

[2025] EWHC 1694 (Ch)BR-2024-000577IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESINSOLVENCY AND COMPANIES LISTIN THE MATTER OF ANTHONY LYONSAND IN THE MATTER OF THE INSOLVENCY ACT 1986Venue Royal Courts of Justice, Rolls Building, Fetter LaneLondon EC4A 1NLDate 1 July 2025
Before
Deputy ICC Judge Baister
Between
BRIDGING FINANCE INCPetitionerANTHONY LYONSRespondentMr William Willson (instructed by Dentons UK and Middle East LLP) for PetitionerMr Aryeh Kramer (360 Law Services) for RespondentHearing Hearing dates: 16 & 17 June 2025
Approved JudgmentThis judgment was handed down at a remote hearing on 8 July 2025 at 10.00 am and by subsequent release to the National Archives.............................Deputy ICC Judge Baister:The petition
[1]This judgment follows the trial of a contested bankruptcy petition presented by Bridging Finance Inc, acting by its receivers, seeking a bankruptcy order against Anthony Lyons. Bridging Finance Inc, a Canadian corporation, carried on the business of providing alternative finance. Mr Lyons was, at the material times, and as far as I know still is, a property investor.[2]The petition debt is said to arise out of a personal guarantee dated 26 October 2018. The debt relied on in the petition was originally said to amount to Canadian $55 million odd. All further references to $ are to Canadian $. The petition has, however, been amended, so that it now stands at $39 million odd (about £26.6 million), the underlying debt having been discharged in part as a result of a realisation and distribution, details of which are given in paragraphs 14A and 14B of the amended petition and the witness statement therein mentioned.

The background

[3]The circumstances giving rise to Mr Lyons’s giving the personal guarantee are as follows.[4]Towards the end of 2018 Mr Lyons became interested in taking over a property investment involving an estate in Northumbria known as Dissington Garden Village or the Dissington Estate in which one of his companies already had an interest. The Dissington Estate project was at that time being run by a company called Lugano Dissington Estates Limited, but planning difficulties affecting its development resulted in that company defaulting on the terms of its borrowings. Mr Lyons needed additional finance to take full control of the project. He was introduced to Mr Graham Marr, the then senior managing director of Bridging Finance Inc, by a mutual contact, Mr Rishi Gautam, and approached him in late September 2018 with a view to Bridging Finance Inc funding a new company which would take over the development by purchasing the senior loan of a company called Topland Jupiter Limited. Further (junior) finance had been provided by a company called Matterhorn Capital Dissington Loan Limited, of which Mr Lyons was already the ultimate beneficial owner. Early email exchanges between Mr Lyons and Mr Marr show that the financing had to be put in place at some speed if the opportunity was not to be lost, which meant that the petitioner had no time to carry out the kind of “due diligence” one would normally expect to see in the case of a deal such as this. Thus, for example, the petitioner did not insist on the provision of up to date valuations, relying instead on valuations provided by or through Mr Lyons (see the emails of 2 October 2018). It did, however, “need to feel comfortable with the outside security being provided” (as Mr Marr put it in his email of 5 October 2018). Later that day Mr Lyons offered comfort in the form of “My personal guarantee across all assets.” He followed that up the next day, saying:
“Need you to be happy with ‘umbrella’ guarantee rather than single asset as I have a huge spread and all very complicated.”
[5]The petitioner ultimately agreed to lend some $36 million to a company called Dissington Lending Company Limited which was owned by Dissington Estate Holdings Limited, a company which, in turn, was owned by Mr Lyons’s private investment company, Anthony Lyons Investments Limited, a company ultimately controlled by Mr Lyons.[6]A facilities agreement was entered into on 26 October 2018. It was backed by a debenture of the same date and Mr Lyons’s personal guarantee. Thereafter Dissington Lending Company Limited enforced security it held over the shares in Lugano Dissington Estates Limited so that it became a wholly owned subsidiary of Dissington Estates Holdings Limited. The financing thus effected a buyout of Lugano Dissington Estates Limited and the absorption of the development into the Dissington group of companies.[7]The development did not go well. Lugano Dissington Estates Limited went into administration on 8 April 2019, and, following defaults under the facilities agreement, Dissington Lending Company Limited went the same way on 30 June 2022.[8]In the meantime, on 20 April 2021 Bridging Finance Inc went into receivership.[9]Demand was made under the facility and under the guarantee, following which a statutory demand was served on Mr Lyons in November 2022. Mr Lyons applied to set aside the demand but withdrew his application, which was dismissed on 7 December 2023.[10]The petition was presented on 19 July 2024. Permission was given to serve out of the jurisdiction, and the petition was served on My Lyons, albeit by substituted service.[11]The foregoing is sufficient to set the scene for what follows. I shall elaborate as necessary below.

The grounds of opposition

[12]Mr Lyons opposes the making of a bankruptcy order on grounds set out in his amended notice of opposition. He contests the jurisdiction of the court to make a bankruptcy order against him. He:(i) notes the concession in the petition that his centre of main interests is in neither the United Kingdom nor a Member State;(ii) denies being ordinarily resident or having a place of residence in England and Wales in the period of three years prior to the date of presentation of the petition;(iii) denies carrying on business during the same period, inter alia because his shareholding in UK companies does not amount to carrying on business in a personal capacity, and hisownership of a UK property similarly does not amount to carrying on business in a personal capacity;(iv) disputes the petition debt, inter alia because: (a) the petitioner (through Mr Marr) made material misrepresentations to him such that the guarantee is susceptible of being rescinded; (b) the petitioner is bound by a promise (amounting to a collateral contract) not to enforce the guarantee; (c) the petitioner is estopped from enforcing the guarantee; (d) the petitioner has waived its rights to enforce the guarantee; and (e) the petitioner breached disclosure obligations to him in failing to disclose the existence of a freezing injunction affecting the Dissington Estate and the security it constituted before he gave the guarantee;(v) relies on the petitioner’s failure to comply with r 10.7(2) Insolvency (England and Wales) Rules 2016 and delay in presenting the petition, warranting the dismissal of the petition under s 266(3) Insolvency Act 1986.

Procedural matters

[13]Mr Willson devotes paragraphs 60-83 of his skeleton argument to the recent procedural history of the petition. Plainly, the course of the litigation between the parties has been fractious. I do not propose to dwell on it. I should, however, make three short points.[14]The first is that both parties have consistently raised complaints about the disclosure (or lack of it) from the other. Mr Willson has obtained some disclosure pursuant to orders made on his client’s applications but says it has been inadequate. Mr Kramer complains that requests have been made for documents but they have not been forthcoming, although he concedes that no application has been made on behalf of his client. I made clear to the parties that I would not entertain further argument about disclosure: this was the trial of the petition, and the time for argument about matters that should have been resolved before it started had passed.[15]The second is that, a matter of days before the trial, Mr Lyons applied for it to be adjourned. His application was heard and dismissed by ICC Judge Agnello KC on 6 June 2025. She made clear to My Lyons that if he was unable to travel to London for cross-examination (which had been ordered on the jurisdiction issue) he should make arrangements to give evidence by video link.[16]The third is that on the morning of the first day of trial Mr Willson applied to admit into evidence two late witness statements, one of Mr Graham Page, an employee of the receiver, and one of Mr Marr (his first). Mr Kramer did not resist the admission of Mr Page’s witness statement (rightly, in my view, as it simply updated the position regarding certain of what I shall loosely call Mr Lyons’s companies, so was uncontroversial). He did object to the admission of Mr Marr’s, but I allowed it in, giving brief reasons for doing so in a short ex tempore judgment. As a quid pro quo I gave permission to Mr Lyons to put in evidence in answer, which he did with commendable speed (I had it by the evening). As Mr Willson predicted, when objecting to my proposed order, it went way beyond answering the petitioner’s late evidence, raking over issues of the past, and, on one view, adding a new twist to the basis on which the petition was being opposed. Most of it was of no assistance.

The evidence

[17]The petition has generated a number of witness statements which have not always emerged in an orderly way. The petitioner relies on witness statements of Mr Page, Mr Ian Fox of Dentons, who act for the petitioner, and one of Mr Marr. Mr Lyons has made a number of witness statements. He also relies on witness statements of Simon Conway, a long standing business associate. The witness statements relied on by Mr Lyons do not always approach the issues in an orderly manner and suffer from vagueness: dates on which things happened are not always given, and often no clear chronology can be discerned. I do not make too much of that: some of the events he and Mr Conway describe go back many years.[18]Neither Mr Lyons nor Mr Conway attended for cross-examination on the jurisdiction issue as they were ordered to. Mr Lyons gave evidence of his reason for failing to do so by reference to medical advice he had been given. As regards Mr Conway, Mr Kramer explained that the trial date had been fixed without reference to his dates to avoid. Mr Willson countered that explanation by pointing out that Mr Conway had claimed that he was wholly unavailable for a period of some five months, which the judge who fixed the trial date found unreasonable and declined to accept, so disregarded his availability. In the course of the trial I was told by Mr Kramer that Mr Conway was expected to turn up on day two of the trial, but he failed to appear by the time the trial finished. He did not do any of us the courtesy of providing information to the effect that he was on his way or would arrive at or around a specific time. In spite of Mr Lyons’s (perhaps excusable) and Mr Conway’s (inexcusable) failure to attend I am satisfied that I can dispose of the jurisdiction issue without the benefit of their oral evidence.[19]The foregoing matters meant that the trial proceeded in a rather disorderly fashion. Mr Willson did not wish to make some of his submissions before cross-examination (if there were to be any), so a number of things were dealt with in an unusual order. I took pains, however, I hope, to see, as well as I could, that both Mr Willson and Mr Kramer were able to deal with all the matters they wished to, and I believe they did. I made it clear from the outset that I was determined that the trial would go ahead whatever the shortcomings might be: two days had been set aside for it, and an adjournment had been refused. I thank Mr Willson and Mr Kramer for their cooperation in ensuring that it did.

Jurisdiction

[20]Mr Lyons is domiciled in the Bahamas, and it is now common ground that he resides there. He and his family have lived there since they emigrated in 2010. The petitioner no longer relies, as it previously did, on Mr Lyons’s having resided or having had a place of residence within the jurisdiction in the relevant period. It now pins its claim to the court’s jurisdiction to entertain its petition solely on his having carried on business in the jurisdiction.[21]Section 265 Insolvency Act 1986, so far as relevant, provides:(1) A bankruptcy petition may be presented to the court under section 264(1)(a) only if— […] (b) the test in subsection (2) is met.(2) The test is that— […] (b) at any time in the period of three years ending with the day on which the petition is presented, the debtor— […] (ii) has carried on business in England and Wales.(3) The reference in subsection (2) to the debtor carrying on business includes— (a) the carrying on of business by a firm or partnership of which the debtor is a member, and (b) the carrying on of business by an agent or manager for the debtor or for such a firm or partnership. The three year period (often called “the relevant period”) in this case began on 20 July 2021 and ended on 19 July 2024. […] (b) the test in subsection (2) is met. […] (b) at any time in the period of three years ending with the day on which the petition is presented, the debtor— […] (ii) has carried on business in England and Wales. (a) the carrying on of business by a firm or partnership of which the debtor is a member, and (b) the carrying on of business by an agent or manager for the debtor or for such a firm or partnership.[22]The petitioner relies on two bases on which it contends Mr Lyons carried on business in England and Wales during the relevant period. They are summarised in Mr Willson’s skeleton argument as: “First, the Petitioner contends that Mr Lyons carried on and continued – during the Relevant Period – a business conducted in an individual capacity as a ‘serial entrepreneur’ – which business was carried out through the (at least) 33 different companies in which he had an ownership/control interest (and which business was/is independent from the business of the relevant companies) (‘the General Business’)” (paragraph 95); and Second, the Petitioner contends that Mr Lyons carried on and continued – during the Relevant Period – a business in relation to Hamilton Terrace. He did this in his individual capacity (and without the use of corporate entities – Hamilton Terrace was registered in his own individual name) (‘the Hamilton Terrace Business’)” (paragraph 98). I shall deal with each in turn.

The general business basis

[23]The starting point for the law on carrying on business is Re Brauch (A Debtor) Ex parte Britannic Securities & Investments Ltd [1978] Ch 316. Re Brauch was an appeal from a receiving order made under the Bankruptcy Act 1914. Among the issues before the Court of Appeal was jurisdiction, specifically whether, as the registrar had found, Mr Brauch had carried on business or had a place of business in the jurisdiction within the meaning and scope of s 4(1)(d) of the 1914 Act. I pause there to note that the test under the 1914 Act differed in two significant respects from that in the Insolvency Act 1986: the relevant period was one year rather than three, and the test was either carrying on business or having a place of business in the jurisdiction during the relevant period. The Court of Appeal held that it was not necessary, in making a finding of carrying on business, to define the business being carried on (see pages 329D and 330F of the judgment). I shall say refer later to further case law on what constitutes carrying on business.[24]Mr Brauch was a property speculator or developer. Each property he acquired was purchased by a single company. There were 90 such companies. Goff LJ said that the evidence showed that Mr Brauch was only a director of a few; the shareholding was “obscure,” but, as the judge went on to say, “it is clear that by some link in the chain he [Mr Brauch] intended to make a profit for himself out of these transactions. The evidence, he said, showed that “the debtor was carrying on personally the business of promoting companies, or acquiring shell companies, to speculate in land, or alternatively that of finding suitable sites for development or investment, negotiating a price, including of course obtaining all necessary valuations, and financing the purchase. He then caused the properties to be vested in companies, which the ‘one company per project’ scheme shows that he must have promoted or acquired for the purpose. Once the property came to the company, its future management, development and realisation was, of course, the business of the company, and any liabilities which it incurred, for example for breach of covenant as landlords or for defective work or anything of that sort, would be the company's liability, not the debtor's; but all the preliminary stages I have described were, in my judgment, his business.” He also said:
“It has to be borne in mind that in Lewis v Graham the Court of Appeal did not have to decide whether control was enough to bring one within the section there under consideration but only whether it applied to a clerk or servant. Moreover, that case was some years before Salomon v Salomon and Co Ltd [1897] AC 22 and, in my judgment, it would be wrong to hold that section 4 (1) (d) applies to a man who is running his company’s business even though he be the sole beneficial shareholder and in complete control. There is, however, nothing in Salomon v Salomon and Co Ltd inconsistent with finding that such a person is also conducting a separate business of his own, as was indeed what Vaughan Williams LJ did in In re Charles Bright (1901) 18 TLR 37.”
[25]Buckley LJ, in a concurring judgment, said:
“There is, in my opinion, no doubt on the evidence that the debtor in this case carried on a business in England, which I would describe as that of a property developer. For the implementation of his projects he made use of a large number of limited liability companies, each company being apparently concerned with only one project at any one time. The fact that the contractual liabilities of the companies occurred in connection with the developments with which they were severally concerned may have been the companies’ liabilities and not in any way liabilities of the debtor does not, in my judgment, in the least deprive those parts of the entire operations which were undertaken by the debtor himself from constituting a business carried on by him on his own behalf. It was he who found and selected the properties to be developed; it was he who had them valued. The correspondence between Mr Maydwell’s firm and the debtor, as well as Mr Maydwell’s own evidence, clearly indicates, in my opinion, that they were dealing with him on valuations as a principal and not as an agent of any company or companies. The debtor and not the companies seems to have organised the financing of the transactions. It was he who selected the company to carry out any particular project; he either promoted the companies or acquired them specifically for the purpose of carrying out those projects; he enabled and procured the companies to acquire their properties and carry out the developments, and in doing so he undertook very considerable personal liabilities in the form of guarantees and in other ways. Informally the debtor controlled these companies in the sense that the boards of directors, of many, and perhaps most, of which he was not formally a member, did whatever he told them to; and the debtor had a beneficial interest in the ultimate profits arising from these activities. The precise nature of this interest and whether he was or was not the only beneficiary does not appear clearly, but that he had such an interest is clear. The role assumed by the debtor in these transactions was, in my judgment, certainly not confined to that of an investor in companies engaged in property developments, as he claimed. Nor was he acting in all respects merely on behalf of the companies: on the contrary I think on a true view of the evidence it would be more accurate to say that the companies were part of the machinery by which the debtor implemented his business projects. It is probable that in the course of doing so the several companies entered into contracts and incurred liabilities in respect of which the debtor could not have been made personally liable. There is no inconsistency between this and the debtor’s having carried on a business which was distinct from the companies’ activities, although associated with them, just as in In re Clark [1914] 3 KB 1095 Mrs. Clark’s activities in her personal capacity and not as managing director of the hotel companies constituted a business of her own distinct from the business of those companies. I am consequently of opinion that the registrar was right in finding that the debtor in this case was carrying on a business of his own in England.”
[26]Mr Willson relies on Re Brauch and the parallels between the facts of that case and this case. He also relies on commentary on the casein The Law of Insolvency (Fletcher) at 29-012 (the emphasis is Mr Willson’s):
“Where an individual utilises the device of incorporation as part of his system of conducting business activities, and thereafter purports to act as the agent or employee working on behalf of the company or companies so formed, it may appear superficially as though the statutory requirement that the debtor is carrying on business in England is not satisfied. According to orthodox notions of company law, the business that is being carried out is considered to be that of the company. However, in Re Brauch, the Court of Appeal held that an objective and realistic view must be taken of the actual business system which has been adopted in a given case. Having rejected the suggestion that proof that the debtor enjoyed the complete effective control of the companies would of itself suffice for him to be carrying on business, the Court nevertheless went on to hold that if the totality of the evidence suggests that by means of the companies which he does in fact control, the individual concerned is operating in such a way that at some point he may expect to profit personally as a result of the activities carried on, as a matter of law, by or on behalf of those companies, then it may be possible to draw the conclusion that the person in question is conducting a separate business of his own, albeit in close association with that being carried on by the companies.”
He submits that that statement is supported by matters identified by Buckley LJ at pages 335G-336C of his judgment.[27]The Court of Appeal dismissed Mr Brauch’s appeal, holding that he had carried on business within the meaning of s 4 of the 1914 Act.[28]Re Brauch has been the subject of further consideration by the courts in this country, largely on the subject of residence/having a place of residence in the jurisdiction, on which the petitioner in that case also relied. An exception is Anglo Irish Bank Corporation Ltd v Flannery [2013] BPIR 1 in which the court identified 12 relevant factors relied on by Goff LJ and Buckley LJ; but the case is of limited assistance, in my view, as the court decided the jurisdiction issue in the negative. Norris J dealt with it (as well as other authority including the Anglo Irish case) in Masters v Barclays Bank plc [2013] EWHC 2166 (Ch), [2013] BPIR 1058. He allowed an appeal against a bankruptcy order made on the basis that the debtor had been carrying on business in England and Wales. Four important points emerge from his judgment. The first is his holding that “in a particular context a single transaction is sufficient to demonstrate the carrying on of a business.” The second is that “[c]hoice of law clauses and jurisdiction clauses tell one how particular obligations are to be ascertained and enforced, but tell one nothing about where the business itself is being conducted.” Similarly (the third point), “Addresses for the delivery of notices and for the service of proceedings may provide some clue: but may simply indicate that the obligor is bound to provide a relevant address within the jurisdiction (no matter where the business itself is conducted).” Finally, Norris J noted that one matter on which the district judge below had relied as carrying on business (drawing down a loan) occurred outside the relevant period, “and there is no sense in which drawing down a loan in April 2008 can constitute carrying on business in and after May 2009.” That is another matter to which I shall return in due course.[29]Re Brauch appears not to have been considered by Barling J in Charlton v Funding Circle Trustee Limited [2019] EWHC 2701 (Ch), [2020] BPIR 12, but carrying on business was one of the issues on what was a successful appeal against a refusal by the court below to annul a bankruptcy order. I do not think I need go into detail: suffice it to say that activities such as being a director or shareholder, giving a guarantee, exploring the options for rescuing a company and the like were not sufficient. I also note the judge’s remark that authority provided no “magic touchstone of what amounts to carrying on a business.”[30]Those recent authorities on carrying on business are easy to follow, as is the finding in Re Brauch that carrying on business through a company or being a director or shareholder does not of itself amount to carrying on business as an individual or on one’s own account. In some other respects the Court of Appeal’s judgment in Re Brauch is less straightforward. I asked Mr Willson to prepare a note on what he submitted was the ratio of the decision and its application to the facts to the case before me. The result was a “supplemental note” running to 11 pages accompanied by a further bundle of authorities, which included Australian case law in which Re Brauch was considered. (I gave Mr Kramer the opportunity of sending a note in answer, but none was forthcoming.) See, however, the postscript to this judgment.[31]The first is Alan Turner v Ronal William Trevorrow and anor [1994] FCA 1091. The judge at first instance noted “the wide understanding” of the words “carrying on business” enunciated by Gibbs J in the earlier case of Re Mendonca, ex parte Federal Commissioner for Taxation (1969) 15 FLR 256. Citing Re Brauch as authority for the proposition that “carrying on of the business [of a company or companies] by the individual itself could be a business for the purposes of the bankruptcy law,” he had gone on to hold that the debtor in the case before him had been engaged in a business, “being the activity, at the very least, of managing and controlling the affairs of the company, A A Turner Pty Limited. The affairs of the company continued after he left Australia [he had gone to Germany] and he appointed an agent to conduct those activities on his behalf while he was outside Australia.” The Federal Court held that the debtor had not carried on business:
“He was the director and controller of the one company which itself carried on the business of building. If Mr Turner did not carry on business himself, it follows that there was no business in respect of which his mother could have acted as his agent.”
The appeal was allowed and the sequestration order (the Australian equivalent of our bankruptcy order) was set aside.[32]The second case is Westpac Banking Corporation v Faress [2011] FMCA 26. Mr Faress, like Mr Turner, was no longer resident in Australia. The creditor relied on carrying on business to establish jurisdiction. Jarrett FM, citing Turner v Trevorrow, emphasised that any business relied on “must have been the debtor’s own.” He set out the creditor’s evidence as to the various companies with which the debtor had been involved and went on to conclude that he had carried on business as a property developer, for which purpose “he utilised various companies for the various properties in which he was interested.” I note that finding of fact, but I think I should treat the case with caution: the judge did not engage in any detailed analysis of the evidence, and Mr Faress did not file evidence or appear to oppose the proceedings.[33]The third case is Commonwealth Bank of Australia v Oswal [2013] FCA 391, although Re Brauch was not cited. I think in any event that I should attach little or no weight to the case as it deals with an application relating to service, so the court itself was of the view it was not appropriate to examine jurisdictional issues in any detail. I do, however, note that Siopis J said that, had it been necessary, he would have decided that the evidence disclosed a prima facie or good arguable case that Mr Oswal had and continued to conduct a business as the promoter of and investor in various companies, which constituted a business separate from that of those companies.[34]Before turning to the facts I should mention one more authority (and two more recent cases which draw on it) on which the petitioner relies, In re A Debtor (No 784 of 1991) [1992] Ch 554, in which Hoffmann J held that a debtor did not cease carrying on business for the purpose of s 265(1)(c)(ii) Insolvency Act 1986 until all the trading debts of the business had been paid. The relevance of this case (and the following cases of Morby v Gate Gourmet Luxembourg IV SARL [2016] EWHC 74 (Ch), [2016] BPIR 414 and Jones v Aston Risk Management Ltd [2024] EWHC 2553 (Ch), [2025] BPIR 280) will become clear later. Hoffmann J also held that there was nothing in the 1986 that indicated an intention to give the words “carried on business” a different meaning from that in s 4 Bankruptcy Act 1914.[35]I turn next to the facts on which the petitioner relies in support of its claim that Mr Lyons was carrying on business within the meaning of s 265(1)(c)(ii) Insolvency Act 1986.[36]The petitioner’s case on the “general business” issue is that at the material times Mr Lyons carried on business as a serial property entrepreneur through at least 33 companies incorporated in England and Wales. The details of those companies are set out in a schedule exhibited to Mr Page’s witness statement of 19 July 2024 and updated by his most recent witness statement. (In fact, as Mr Willson points out, Mr Lyons has been “associated with” 133 different corporations during his career, but that is simply background rather than a fact directly relied on.) All bar two of those 33 companies (which are in an insolvency process) have their registered office at 10 Gloucester Place, London W1, an address which Mr Lyons also used as a personal contact address in the UK.[37]At the apex of Mr Lyons’s business structure is Anthony Lyons Investments Limited, of which Mr Lyons is a person with significant control and the ultimate beneficial owner. At present the sole director of Anthony Lyons Investments Limited is Mr Conway, but both Mr Lyons and his father have previously acted as directors. Anthony Lyons Investments Limited is a significant controlling party of Matterhorn Capital Limited and St James Capital Chiswell Street Holdings Limited. Matterhorn Capital Limited in turn controls a number of companies that make up what Mr Willson calls “the Matterhorn sub-group.” St James Capital Chiswell Street Holdings Limited also controls a number of companies forming what Mr Willson calls “the St James sub-group.” Mr Willson identifies two further “sub-groups,” “the Dissington sub-group” and “the Future Energy sub-group.” The business of the latter is, it seems, the provision of money-saving lighting; the business of the other sub-groups is property oriented.[38]Mr Willson submits that Mr Lyons must have played a role in incorporating these companies. His ultimate control and interest in those companies constitutes a personal business of Mr Lyons conducted in England and Wales and independent of the business of the companies themselves.[39]In the course of his submissions, Mr Willson took me to written and documentary evidence supporting those propositions. He also took me to evidence of other conduct of Mr Lyons which he contended showed him carrying on business. I summarise those broadly as follows.(a) It was Mr Lyons who brought the Dissington Estate deal to Mr Marr/the petitioner. Mr Conway was barely involved in this or subsequent matters relating to Dissington. Reliance should be placed on Mr Lyons referring to the loan as “my loan.”(b) It was Mr Lyons who negotiated the terms of the facility granted by the petitioner.(c) It was Mr Lyons who gave the guarantee.(d) Mr Lyons selected the company or companies used as the vehicles for the Dissington development.(e) Mr Lyons was the person who negotiated with or communicated with the petitioner and/or the receiver when the Dissington project failed. At one point he offered to buy the debt.(f) Mr Lyons travelled to London in 2021 and 2022 in an attempt to settle with the petitioner.[40]Mr Willson aligned those and other matters with the factors identified in Irish Bank v Flannery:(a) The fact that Mr Lyons was a property developer (factor 1) who(b) used limited companies for his business (factor 2): it was he who worked with Mishcon de Reya (who he described as his lawyers) to set up the corporate structure he used.(c) He controlled those companies (factor 9).(d) It was Mr Lyons who found the properties for development (factor 3). It was he, for example, who went to the petitioner/Mr Marr with the Dissington project.(e) He selected the company through which to run each project (factors 5 and 8).(f) He organised the finance (factor 6).(g) He guaranteed the Dissington finance (factor 11).(h) He had a beneficial interest in the ultimate profits (factor 10).(i) He described himself as the CEO of Matterhorn Capital; Mr Conway was COO and therefore junior to him.[41]In his closing submissions he mentioned some of the questions he would have put in cross-examination which he would have expected (in my view with justification) to bolster his case.[42]“Taking these points together,” Mr Willson says, “– and on an assessment of the totality of the evidence – it is impossible to form any conclusion other than that Mr Lyons was/has been carrying on business in England and Wales during the relevant period.”[43]In the conclusion to his supplemental note he makes the following points. The court, he submits, needs to ask itself two questions: If Mr Lyons’s promotion of and participation in his property empire are not “carrying on business,” then what is? And:
“Why should an individual such as Mr Lyons be entitled/able to evade the bankruptcy jurisdiction of the English courts by (a) hiding behind the corporate veil and (b) seeking to rely on a deliberate strategy he has adopted to organise his affairs? He then invites the court to consider the “Buckley question:” “On a true view of the evidence, would it be more accurate to say that the companies were part of the machinery by which the debtor implemented his business projects?”
Finally, he submits, the court should not set the burden for the petitioner unrealistically high.[44]Mr Lyons says that everything changed when he left the UK for the Bahamas in 2010. He describes in his evidence how he disposed of his house here, told his banks, professional advisers and others that he was leaving the country, resigned as an officer of “all the various corporations in England and Wales,” whereafter he stopped running them and had no further active involvement in them. He goes on to say that he resigned from a total of 73 companies and as a designated member of Quillpoint Capital Marine LLP in 2011. He concedes that he remained a partner in Sealyon Marine Charters LLP, which held his yacht, until it was dissolved in May 2017. The Sealyon itself was sold in 2014. He also concedes that he remained an investor in businesses in the UK and elsewhere. “However,” he says, “I changed my entire business model when I emigrated and left England and was no longer actively involved or a decision-maker. All my businesses were operated by Simon Conway, who had his own office and employed multiple people at various times. I was simply a passive investor in his and other businesses. All decisions in England of the companies that were listed in Companies House as my having an interest in were made by him, the only decisions I made were those made by investors. I was not running a business within the jurisdiction since leaving [in] 2010” (paragraphs 17 and 18 of Mr Lyons’s witness statement of 17 January 2010).[45]Mr Conway’s evidence is to the same effect: “Mr Lyons let me take over the company [sic] and for me to manage all of them as I saw fit. From that date forward Mr Lyons role was to provide finance as an investor,” although he concedes that he did report to Mr Lyons “randomly” when he was in Miami or the Bahamas.[46]Mr Kramer’s submissions on the “general business” issue were brief. In answer to a question from me he confirmed that they rested on the need to respect the different legal personalities of Mr Lyons on the one hand and his companies on the other.[47]There are compelling analogies between the facts in this case and those in Re Brauch. Both Mr Brauch and Mr Lyons were property investors. Both used companies as the vehicles through which they conducted their investments. The number of companies each used was significant, 90 in the case of Mr Brauch, 33 in the case of Mr Lyons. (I do not think the numbers matter much: both numbers are significant: all things being equal I would say that 33 is as good as 90. In Re Oswal there were 12.) Both Mr Brauch and Mr Lyons were involved in the incorporation and promotion of the companies through which they conducted their business. The Court of Appeal found that as a fact in Re Brauch. Although it is not explicitly averred in this case, I can reasonably infer that Mr Lyons did incorporate and promote the companies he ultimately controlled, or procured others to, and I do so. Finally, both Mr Brauch and Mr Lyons intended to profit personally from what they did.[48]That said, it seems to me that the judgement in Re Brauch rested on a core finding that “the debtor was carrying on personally the business of promoting companies, or acquiring shell companies, to speculate in land, or alternatively that of finding suitable sites for development or investment, negotiating a price, including of course obtaining all necessary valuations, and financing the purchase. He then caused the properties to be vested in companies which the ‘one company per project’ scheme shows that he must have promoted or acquired for the purpose. Once the property came to the company, its future management, development and realisation was, of course, the business of the company, and any liabilities which it incurred […] would be the company’s liability, not the debtor’s; but all the preliminary stages I have described were, in my judgment, his business.”[49]The incorporation and promotion of a company (or the acquisition of a shell company) are plainly the acts of an individual or individuals, but they are essentially one-off events. Furthermore, in my view, to be effective for the purpose of founding jurisdiction, they must have occurred in the relevant period. The schedule of companies relied on by the petitioner does not give the dates of their incorporation. The evidence discloses that Anthony Lyons Investments Limited was incorporated in 2005, as were Matterhorn Capital Limited and St James Capital Chiswell Street Holdings Limited; Future Energy Solutions Lighting Holdings Limited was incorporated in 2013; Dissington Estate Holdings Limited was incorporated in 2018. I have no doubt that if any of the companies with which we are concerned here had been incorporated in the relevant period Mr Willson would have drawn my attention to it in the course of his submissions.[50]Mr Willson seeks to overcome what I regard to be an obstacle to the petitioner’s case on the general business basis for jurisdiction in two ways. First, he points out that the Court of Appeal in Re Brauch made no finding that the promotion and other activities relied on occurred during the then relevant one year period. That may be so, but I think it is implicit in the court’s judgment that it did: it must have had the point well in mind in view of the statutory provision it was considering; and it was mentioned by Goff LJ (at 325D), albeit in the context of a claim by another of Mr Brauch’s creditors. Secondly, Mr Willson relies on In re A Debtor and the two other cases I mention above in connection with it which make essentially the same point. I do not think that In re A Debtor assists. The promotion of a company and similar acts are, as I have said, one-off acts; incurring a debt that is not paid has a continuing effect in keeping alive a liability that remains just that until it is discharged, which can readily be seen as part and parcel of trading.[51]Goff LJ did not rely solely on the promotion or acquisition of companies: he relied on other activities too, some of which Mr Lyons appears to have engaged in as well, suggesting a further analogy with the position in Re Brauch. As Goff LJ pointed out, when considering the effect of the judgment in Salomon v A Salomon and Co Ltd [1887] AC 22, nothing in that case is inconsistent with finding that someone running the business of a company may also be conducting a business of his own, as had been the case in In re Charles Bright (1901) 18 TLR 37. In spite of the compelling evidence adduced by the petitioner of activity akin to that relied on by Goff LJ, I am unable to distinguish between things done by Mr Lyons as investor/shareholder and/or guarantor and things done by his companies. All three roles Mr Lyons was playing from time to time must have played a part in what he said and did. The upshot of the lack of clarity as to which acts can be attributed to which role is that I am unable to isolate actions that show with sufficient clarity that he was acting solely, predominantly or, arguably, at all in a personal capacity. Furthermore, Mr Lyons’s use of the title CEO and Mr Conway’s description of Mr Lyons as a shadow director point to his involvement being corporate as opposed to personal. Indeed there is a tension between the petitioner’s relying on a fact that would make Mr Lyons the agent of his companies and the proposition that those companies were, in effect, the agents of Mr Lyons. I can make nothing, I think, of his use of the Gloucester Place address for personal as well as corporate purposes for the reasons advanced by Norris J in Masters v Barclays Bank.[52]Thus, in spite of the compelling way in which Mr Willson puts the petitioner’s case, having regard to the totality of the evidence, I conclude, albeit with considerable misgivings, that I am unable to say, on the balance of probabilities, that anything Mr Lyons did can be attributed to his carrying on a personal business or that his companies were simply part of the machinery by which he implemented his business projects. I find myself constrained to respect the distinction between Mr Lyons as an individual and his companies. I therefore reject the general business ground advanced by the petitioner as establishing bankruptcy jurisdiction in this case.

The Hamilton Terrace business basis

[53]If the general business basis for jurisdiction relied on by the petitioner gives rise to difficulties, the same cannot be said of its reliance on Mr Lyons’s having carried on business in the relevant period in connection with a London property, 100 Hamilton Place, London NW8, now referred to as Hamilton Terrace.[54]Mr Lyons acquired Hamilton Terrace (or at least part of it – the titles of two properties were merged at some stage) in July 2003. Works were done to transform what was originally five flats into a single residence. Mr Lyons had complete ownership of the property in its current state from at least 2010. It was registered in his sole name. He sold it on 23 March 2022 for £26 million odd. He signed the transfer, and his signature was witnessed. The property was let at various stages, although not continuously, between 10 April 2016 and 31 August 2021. The rent was around £25,000 a week. A number of tenancy agreements are in evidence, including one for a period of two years dated 7 January 2020. In 2019 Hamilton Terrace was used by Bentley to celebrate the centenary of its foundation, although no information is in evidence as to the terms on which it was made available. Mr Lyons and Mr Conway both give evidence about their dealings with the Hamilton Terrace, but I do not need to go into it as the essential facts set out above are not challenged; indeed they come from Mr Lyons and/or Mr Conway. Mr Willson submits that the activities I have described amounted to carrying on business.[55]In Durkan v Jones[2023] EWHC 1359 (Ch), [2023] BPIR 1074 the court held that property letting in similar circumstances constituted carrying on business for the purpose of establishing jurisdiction. It reached that conclusion by reference to three questions: what the debtor did; at what time; and whether what he did amounted to carrying on business. I have already mentioned that in Re Brauch the court found it unnecessary to define the business being carried on and to Barling J’s statement in Charlton v Funding Circle Trustees Ltd & Anor that what constituted carrying on business was hard to define – there was no magic touchstone. The court held in Durkan v Jones that, in the absence of guidance in the legislation or case law, the expression should be given its natural meaning.[56]Adopting the same approach in this case, I find myself in agreement with Mr Willson that what Mr Lyons did in relation to Hamilton Terrace indeed amount to carrying on business. I rely on the following:(a) Mr Lyons is, and appears always to have been, a property investor, He says he continued to invest in businesses in England and elsewhere even after emigrating (paragraph 17 of his witness statement of 17 January 2025). Although his/Mr Conway’s evidence is that he did not usually invest in a personal capacity, he clearly did in this case.(b) The property was developed and refurbished. In his witness statement of 17 January 2025 Mr Lyons describes the creation of the property out of two properties and the amalgamation of the titles and goes on to say that it was later converted from five flats into a single dwelling before being put on the market.(c) He accepts that the property was rented pending its sale. He also accepts that he signed “several of the tenancy agreements” (I understand Mr Conway signed others but with Mr Lyons’s authority) and received rental income (paragraph 2 of his witness statement of 1 May 2025).(d) He accepts that the property was sold, and although I have no direct evidence of the fact, I presume that he, as the owner of the property, received the net proceeds of that sale, just as he received the rental income. In fact whether he made a profit is neither here nor there: business can result in a loss too.(e) I accept Mr Lyons’s and Mr Conway’s evidence that these activities were primarily managed by Mr Conway “with the staff of Matterhorn Property,” but plainly they were acting as Mr Lyons’s agents. The project was his, not that of Mr Conway or Matterhorn.[57]Mr Kramer gamely sought to argue that the Hamilton Terrace business was not an investment or development. He sought to deflect the claim that it was by pointing to evidence of Mr Lyons’s intentions. He relied first on passages in Mr Lyons’s and Mr Conway’s evidence describing how the project was initially to be “a joint venture with a third party” (a Mr Todd), but he withdrew, leaving Mr Lyons “holding the baby.” So Mr Lyons’s involvement was the result of chance rather than intention. He also relied on evidence that at one stage Mr Lyons had contemplated occupying Hamilton Terrace with his family as a residence, although that never happened because Mr Lyons’s wife did not like it. I say three things about that.(a) Mr Conway’s use of the term “joint venture” connotes a business transaction, not a personal transaction.(b) I do not think the fact that Mr Lyons found himself embroiled in a project that was not what he really wanted to do detracts from the facts that the property was developed, rented and sold.(c) I do not think the fact that Mr Lyons contemplated residing at the property detracts from those facts either. In any event, neither Mr Lyons nor his family ever actually took up residence in Hamilton Terrace, so even if there was an intention to do so at one stage it did not persist after it was abandoned.[58]I put to Mr Kramer the proposition relied on in Durkan v Jones, when I asked: if Mr Lyons was not carrying on business, how could his activities in relation to the property be otherwise described? He was unable to provide me with a satisfactory response.[59]Having decided what was done and by whom, I turn to the third issue with which I must deal, namely when those things were done: to found jurisdiction acts that constitute carrying on business must have taken place in the relevant period. The property was acquired well before it began. The refurbishment works also appear to have been undertaken before the period began. However, at least one tenancy agreement was current during the relevant period, and rent was received (or at least must have fallen due) in August 2021, just after the commencement of the relevant period. Furthermore, Hamilton Terrace was sold in 2022. Those activities were part and parcel of carrying on the Hamilton Terrace business. Neither the Insolvency Act 1986 nor authority dictate that business must be carried on to some high degree or to a particular value. Plainly, however, the sale of the property was an important transaction, representing the culmination of years of investment and effort. I remind myself that in Masters v Barclays Bank Norris J noted that “in principle there is no reason why a single transaction should not constitute the carrying on of business, on the totality of the evidence, that appears to be the position: see Conway v Kenny [1999] EWCA Civ 639, [1999] 1 WLR 1340.”[60]For the foregoing reasons I hold that Mr Lyons carried on business in England and Wales during the relevant period so that this court has jurisdiction to hear the petition and make a bankruptcy order on it.

The disputed debt issues

[61]Having found that I must deal with the grounds on which Mr Lyons disputes the petition debt.[62]The fundamental legal principles are uncontroversial, so I think it is sufficient to refer to them as set out in paragraph 165 ff of Mr Willson’s skeleton argument, which I adopt with minor editorial changes:(1) The bankruptcy court will dismiss a petition if there is a genuinely triable issue as to the existence of the petition debt: the test is the same as that applicable to disputed statutory demands (Markham v Karsten [2007] EWHC 1509 (Ch); Muir Hunter on Personal Insolvencyat 3-414).(2) The test set out in the Practice Direction on Insolvency Proceedings is that the court will normally set aside a statutory demand where on the evidence there is a genuinely triable issue (Alexander-Theodotou v Michael Kyprianou [2016] EWHC 1493 (Ch), at [12], per Briggs J, as he then was).(3) There is no practical distinction between “the genuine triable issue” test in the PDIP and the “real prospect of success” test in Part 24 of the CPR (Ashworth v Newnote Limited [2007] BPIR 1012; Muir Hunter 7A-138.4; Smith v Gregory [2022] EWHC 190, at [5]).(4) The court should be alive to a debtor’s seeking to raise a “cloud of objections” that a debt is disputed and that the dispute is not able to be determined on documentary evidence and without cross-examination (Angel Group Limited v British Gas Trading Ltd [2012] EWHC 2702 (Ch), per Norris J; Coilcolor Ltd v Camtrex Ltd, at [35]).(5) It is open to the court to reject an applicant’s evidence if it is inherently implausible or it is contradicted or not supported by contemporaneous documentation. A mere assertion by the applicant that something has been said or has happened will not generally be enough if those words or events were in dispute and material to the issue between the parties (Collier v P&MJ Wright (Holdings) Limited [2007] EWCA Civ 1329, at [21], per Arden LJ).(6) The court may reject evidence as being manifestly incredible, if it is shown to be the case by other facts which are admitted, or by reliable contemporaneous documents (Coyne v DRC Distribution Ltd [2008] EWCA Civ 488, at [58], per Rimer LJ).(7) In determining whether there is a substantial dispute as to the debt, the court may consider the commercial improbability of the applicant’s case, and whether it is inherently unlikely or implausible that the respondent would have entered into such an agreement (Macplant Services Ltd v Contract Lifting Services (Scotland) Ltd CSOH 158, [57]-[59], per Lord Hodge).(8) The court may ask itself why arguments run before it have not previously been run (West Bromwich Building Society v Crammer [2002] EWCA Civ 1924, at [19], per Chadwick LJ). I did not understand Mr Kramer to dispute Mr Willson’s propositions: in his submissions he said he would not address me on the law as to the test to be applied because it was well known and uncontroversial.[63]Before Mr Kramer made his submissions on the grounds on which his client disputed the debt I asked him whether he accepted the accuracy of Mr Willson’s summary of them in paragraphs 168 ff of his skeleton argument. (I did so because Mr Kramer’s skeleton did not engage with them in any detail.) Mr Kramer said he did. In those circumstances I will deal with them in the order in which they appear in Mr Willson’s skeleton and by reference to his description of them.[64]I deal first with the allegation that Mr Marr represented to Mr Lyons in or around autumn 2018 that the estate was worth £75 million (“the misrepresentation issue”).[65]I do not know where the £75 million figure comes from. It is mentioned in paragraph 11 of the notice of opposition but it seems to have been plucked out of the air. I was not taken to anything in the evidence that supports it, not did Mr Kramer take me to any legal basis on which it might be said to arise, both of which are themselves significant. The three valuations that Mr Lyons provided to Mr Marr give figures of £29 million (Savills), £24 million (GVA) and £22.9 million (Youngs) (see Mr Lyons’s email to Mr Marr of 2 October 2018).[66]What Mr Lyons says is set out in paragraphs 47-51 of his witness statement of 17 January 2025. He says that Mr Marr told him not to take any advice or valuations “as he [Mr Marr] was an expert on property development and no one could provide advice better than his.” Mr Lyons goes on to say, “I relied entirely on him” (paragraph 47). He makes much the same point in paragraph 48. In paragraph 49 Mr Lyons says that Mr Marr said that the petitioner did not need a valuation as he (Mr Marr) was an expert valuer and could advise him (Mr Lyons) on it. Paragraph 50 describes a visit Mr Marr made to the Dissington estate, after which, Mr Lyons says, “[Mr Marr] provided substantial assurances that there was no reason not to take over the primary lenders, as he could turn the deal into gold dust;” and “He insisted it was an unbelievable opportunity, and the old valuations I had were excessively conservative. I placed significant reliance on these assurances, as I had made clear to him that I was somewhat reluctant to proceed.”[67]In his very recent and only witness statement Mr Marr challenges Mr Lyons’s assertions. Bare assertion by Mr Lyons thus comes up against bare denial from Mr Marr. Can the court resolve that tension without trial and cross-examination and/or full disclosure? I believe it can and should do so in this case for the reasons advanced by Mr Willson:(a) Mr Lyons’s evidence is inherently implausible. As Mr Willson submits, it turns the borrower/lender relationship upside down, assuming that it is the latter that seeks to induce the former to do the deal. That, I accept, may sometimes be how things work, but it is not borne out by the evidence in this case. I say that for a number of reasons.(b) As we have seen, it was Mr Lyons who sought out the petitioner, the connection having been made by Mr Gautam, not the other way round.(c) There is not the slightest indication in the documents that Mr Marr claimed the valuation expertise which Mr Lyons says he claimed.(d) The only valuations in play emanated from Mr Lyons, not from Mr Marr, and, I repeat, not one mentions a figure of £75 million.(e) There is no evidence of any reluctance on the part of Mr Lyons to do the deal; to the contrary, there is evidence of his enthusiasm for it in the form of an email of 2 October 2018, in which he told Mr Marr that “you have zero/very little downside,” and that he could earn “£10 million profit and 10% accrued” on a deal that was “straightforward.”(f) In addition to being inherently implausible, Mr Lyons’s evidence invites the court to accept a borrower/lender relationship and dealings between the two that are commercially implausible as well.[68]A further reason to reject this ground of opposition is that the point was not taken on Mr Lyons’s application to set aside the statutory demand. It was raised late in the day, which considerably weakens the little force it has. Its importance means it is unlikely to have escaped Mr Lyons’s attention when he made his application. He had the benefit of legal advice at the time.[69]My points about inherent and commercial implausibility and lateness are not decisive: the apparently implausible sometimes turns out to be true, and points taken late may turn out to have merit. However, even if what Mr Lyons asserts were true, substantial difficulties lie in turning it into a viable claim in misrepresentation. Mr Kramer does not address the law in any detail in his skeleton argument, nor did he make submissions. Mr Lyons’s notice of opposition claims that the guarantee is liable to be rescinded, but that point was not developed in any way at trial.[70]There are other problems too.[71]I have no doubt that many extravagant things are said in the course of setting up deals of the kind in issue in this case. Much that is said is likely to be in the nature of “puff” that falls short of anything that might qualify as an actionable misrepresentation. Furthermore, as Mr Willson submits in his skeleton argument, the requirements that must be satisfied for a party to have a remedy for misrepresentation that may give rise to a right to rescind a contract and /or to claim damages from the other part are well-established but have not been made out here. Mr Kramer’s submissions never got beyond the facts; there was no attempt to apply them in the light of the law.[72]Taking all the foregoing matters into account, I conclude, on the balance of probabilities that nothing said by Mr Marr could be said to have amounted to a misrepresentation of a kind that gives Mr Lyons a legal remedy of sufficient (or any) substance amounting to a bona fide or substantial basis on which to dispute the petition debt and dismiss this ground of opposition.[73]Much the same may be said of Mr Lyons’s claim that Mr Marr represented to him or agreed that the guarantee he was to give or had given was simply a matter of form and would not be relied on (“the collateral agreement argument”). Mr Kramer referred to it in his submissions as a “tick box” requirement. Whether the point is said to arise from a misrepresentation or a collateral contract, I reject it for the following reasons.[74]It too is inherently implausible. It would involve the court contemplating an absurd reality in which the petitioner, which said it needed to be “comfortable” with the terms on which it was to lend, took the guarantee with a view to obtaining just that level of comfort only to throw away the benefit of having done so. Apart from being inherently implausible, that is commercially implausible for the same reason. I am reinforced in those views by the following, all of which point to the guarantee being an important part of the financing deal.[75]The guarantee is mentioned in the facility agreement. It is defined as “the personal guarantee granted by Anothony Lyons in favour of the Finance Parties, as guarantee for the Secured Liabilities.” That is consistent with the guarantee Mr Lyons himself offered. Provisions relating to the guarantee are set out in clause 17, running to a little over three pages. I can reasonably conclude from that that the guarantee was not only important but integral to the lending.[76]The guarantee was drafted by the petitioner’s solicitors: it bears the Dentons name/logo. It runs to 15 pages. I accept that much of it is probably the product of the firm’s precedent bank, but it is plainly more than a token or “tick box” document, a matter of form rather than a matter of substance.[77]It bears the common warnings (in bold capital letters)(a) to take independent legal advice before signing it;(b) to sign only if the signatory is content to be legally bound by its terms;(c) that the guarantor may be become liable instead of or as well as the principal debtor; and(d) that the liabilities are not subject to any cap. The language could not be plainer.[78]Mr Lyons signed the guarantee, and his signature was witnessed.[79]Mr Lyons was independently advised by Mishcon de Reya, as confirmed by a “To whom it may concern” letter of October 2018. I rely on the whole of what is said in that letter (which is in fairly standard terms for a letter of its kind) but draw particular attention to the assurance given that the guarantee was not signed “as a result of a misrepresentation(s) or any other legal wrong.”[80]There is no contemporaneous documentary evidence supporting Mr Lyons’s assertion of any misrepresentation or collateral agreement or the like to the effect that the guarantee would never be relied on.[81]Similarly, there is no mention of any such arrangement in the correspondence at the time of the collapse of the Dissington project or when it became clear that Mr Lyons was going to be called on under the guarantee. I do not intend to go through all the documents to prove that negative. It is enough to refer, by way of example, to Mr Lyons’s letter of 2 March 2021 offering to put a mortgage on Jungle Cove and an email of 23 July to Mr Ray of Pricewaterhouse considering ways in which “I [Mr Lyons]…can be in a position to sell and repay the loan.” On 25 October 2021 Mr Lyons wrote to Mr Ray asking for “a further element of time and consideration on the PG issue.” There was not the slightest suggestion that the guarantee was in some way capable of being impugned.[82]Finally, again this point was not taken on Mr Lyons’s application to set aside the statutory demand. Whilst one might understand that a lay person may take time and need advice to formulate some claims of this kind, an assurance by a lender that a guarantee would not be relied on is so straightforward and fundamental that it would be uppermost in the mind of anyone who had been given an assurance of the kind on which Mr Lyons relies, if what he says is true. Plainly it is not. The earliest reference I have been able to find to it comes in a letter from his solicitors written on 29 May 2024.[83]Mr Kramer gallantly sought to sustain his client’s position by attacking the petitioner’s lax approach to the taking of security. He pointed out that Mr Lyons had offered security over his property in the Bahamas, shares in a company in Colorado and his yacht, the Sealyon. The petitioner had not taken security over any of those. Its cavalier approach to Mr Lyons’s guarantee was in line with that: Mr Marr thought there was enough in the value of the estate to cover the lending.[84]I do not follow the logic of that. As Mr Willson pointed out, the family home, Jungle Grove, in the Bahamas was jointly owned by Mr Lyons and his wife, so taking security would have required Mrs Lyons’s cooperation (which, of course I accept, as Mr Kramer pointed out, may have been forthcoming); but the yacht was already subject to a charge which prohibited giving further security, so there was nothing to be had there. I know little about the shares beyond Mr Lyons’s assertion that they had substantial value, so I can take no view about them and why the petitioner did not take security over them. I am unable, then, to reach the conclusion that Mr Kramer invites me to. Lending and borrowing always involve some risk. Mr Lyons took a risk in providing the guarantee he freely entered into, and the petitioner took the risk it did in lending on the security it actually took, which, after all, took the form of a debenture and an all liabilities guarantee from someone who held himself out as being wealthy.[85]For the reasons I have given I dismiss this ground of opposition.[86]Mr Lyons advances further grounds of opposition on the basis of estoppel and waiver. In the course of his submissions Mr Kramer accepted that they amounted to other ways of putting the grounds with which I have already dealt. He did not develop them in argument independently or by reference to law or authority. In those circumstances I shall dismiss them too.[87]The next argument takes the form of an allegation that the petitioner failed to disclose to Mr Lyons the existence of a worldwide freezing injunction (p 995 ff). The injunction takes the form of an order of Popplewell J, as he then was, of 8 July 2016 in proceedings brought by five BVI companies against a Ms Cochrane and a Ms Irving. Neither the petitioner nor My Lyons is or was a party to the proceedings in which it was made. Assets affected by the order include “the Cochrane assets” (paragraph 3(2) which are defined to include the Dissington Estate (paragraph 4A(1)).[88]I know very little about the proceedings in which the order was made. I do not know what, if anything, the petitioner knew about them, Mr Lyons says he did not: it came to light “after Dissington went into insolvency.” Mr Willson points out that no legal basis is asserted by or on behalf of Mr Lyons on which the petitioner might have been under a duty to make disclosure. His more compelling point is, however, that the existence of the freezing injunction has had no effect on the realisation of the estate. Mr Kramer did not develop the point in his submissions. In the circumstances I accept those of Mr Willson and again dismiss this ground of opposition.

Delay

[89]Rule 10.7(2) Insolvency (England and Wales) Rules 2016 provides that, if a bankruptcy petition is based on a statutory demand and more than four months have elapsed between service of the demand and presentation of the petition, the petition must contain an explanation of the reasons for the delay. My Lyons complains that the rule has not been complied with, and he is right. I am told that at an earlier hearing ICC Judge Burton expressed the view that the reason for the delay was obvious, namely the time it took to investigate the ability of the petitioner to serve Mr Lyons with the petition out of the jurisdiction. I too accept that explanation. There is no evidence that Mr Lyons has been prejudiced by the petitioner’s breach. Mr Kramer was unable to point to any authority in which the court had dismissed a petition for non-compliance with the rule. I do not say that the rule can be ignored, but in the circumstances of this case I shall waive the defect.

A general observation

[90]I end this part of my judgment with a general observation about the way in which Mr Lyons’s opposition to the petition in this case has developed. I have already alluded to the fact that a number of matters relied on in opposition to the petition were not raised at the statutory demand stage or at other stages where one might have expected them to have been canvassed. That, as I have said, is itself significant. Quite apart from that, however, as these proceedings have gone on, Mr Lyons has raised an array of points of doubtful merit which have not, in the end, been pursued with any degree of vigour or at all or supported by reference to authority or legal argument. The impression created is of increasing desperation. That may be understandable at a human level, but it has, I fear, contributed to the impression I have gained that Mr Lyons’s grounds of opposition have, at least in part, not been advanced bona fide and do indeed amount to nothing more than the proverbial cloud of objections.

Result

[91]For all the reasons I have given I shall make a bankruptcy order when this judgment is handed down.

Postscript

[92]In paragraph 30 I said that Mr Kramer had not sent me a note in answer to Mr Willson’s note on Re Brauch. It later emerged he had, although he had not sent it to my private email address (which I had given him so that he could send me Mr Lyons’s fifth witness statement) or to the court clerks but simply filed it at court, so it did not reach me. I learned of its existence for the first time when I received Mr Willson’s list of corrections on 26 June 2025. It came slightly out of time (an extension had been requested which I would surely have agreed to) together with a sixth witness statement of Mr Lyons.[93]I decline to admit Mr Lyons’s further evidence: it was not foreshadowed in Mr Kramer’s closing submissions, no application has been made to adduce it, and it comes after the end of the trial. Mr Kramer’s note, which was supposed to be limited to answering Mr Willson’s note on Re Brauch, takes the form of what he himself describes as “Respondent’s submissions.” It runs to 82 paragraphs. It says, “This document serves not only as a response to the document produced by Counsel [Mr Willson] on the final day of the hearing and the witness statement adduced at the hearing, but also as a reply to the parties’ respective closing submissions.” Most of what it covers should have been in Mr Kramer’s skeleton argument (which was only 29 paragraphs long) or dealt with in his oral closing submissions. Only paragraphs 66-76 deal with Re Brauch. Nothing in it prompts me to add to what I have said above on the matter.