Michael Ashley & Anor v Tony Michael Jimenez [2025] EWHC 557 (Ch)

[2025] EWHC 557 (Ch)

Case No HC-2017-000156

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

BUSINESS LIST (ChD)

Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NL

Date 14/03/2025

Before

HH JUDGE KLEIN SITTING AS A HIGH COURT JUDGE

Between

(1) MICHAEL ASHLEYClaimants

(2) ST JAMES HOLDINGS LIMITEDClaimant

TONY MICHAEL JIMENEZDefendant

Hugh Miall (instructed by Lawrence Stephens Ltd) for Claimants

Emma Read (instructed by Rainer Hughes) for Defendant

Hearing Hearing dates: 4-7 March 2025

Approved Judgment

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

.............................

HH JUDGE KLEIN

HH Judge Klein:

[1]This is my decision following an issues trial ordered by Rajah J on 14 June 2024. The issues

the judge ordered to be determined are the following:

“(1) Whether the Defendant failed to submit to examination by the Claimants’ medical experts within the proper meaning of paragraph 2 of the Order of Master Brightwell dated 17 March 2023, with the consequence that the Defendant is barred from relying on medical evidence for the purposes of the determination of issue (2), below; (2) Whether the Defendant is medically unable to attend Court (including, if necessary, subject to any appropriate adjustments to facilitate his appearance) for examination under Part 71 by reason of any (i) mental impairment or (ii) physical impairment by reason of a neurological condition; and (3) Whether the Defendant has failed to comply with paragraph 3 of the Order of Deputy Master Marsh dated 17 November 2022, and thereby breached paragraph 1 of the Order of Mellor J dated 20 December 2021.”

The judge’s order contains an obvious typographical error on which nothing turns. It refers to para.6 of Master Brightwell’s 17 March 2023 order (“Master Brightwell’s order”), when it should refer to para.2 as I have indicated.

[2]At the trial, the claimants were represented by Hugh Miall of counsel. The defendantwas represented by Emma Read of counsel. I am grateful to them both for their assistance.

[3]To explain how come the judge ordered the issues trial, I need to explain a little about the unfortunate history of this claim, which began in 2017, between Michael Ashley, the well-known businessman and former owner of Newcastle United Football Club(where, and this is relevant by way of background, the equally well-known former footballer, Dennis Wise, was director of football), and the defendant, who is also a businessman and was vice-president of Newcastle United at the same time as Mr Ashley was its chairman. St James Holdings Ltd is, I understand, one of Mr Ashley’s corporate vehicles.

[4]I begin by referring to the judgment of Chief Master Marsh given on 31 May 2019. The Master explained:

“This claim was issued as long ago as 19 January 2017. The claim concerns a payment made by Mr Ashley personally to a company called South Horizon Trading Limited, which was the second defendant to the claim. There is no doubt that South Horizon was a trading entity acting as a manifestation of the first defendant, Mr Jimenez. The payment of £3 million, or more specifically the euro equivalent of that amount, was made by Mr Ashley by transfer on 13 May 2008. At the relevant time, Mr Ashley and Mr Jimenez were both friends and business associates. Both such relationships seemingly were relatively short-lived. Mr Jimenez became a director and vice-president of Newcastle United Football Club in January 2008 and remained a director until the latter part of 2008. The claim as drafted comprises some seven different causes of action, but at its heart it concerns the payment [mis-]representations that are said to be made [fraudulently] by Mr Jimenez before the payment was made and the basis upon which the payment was received by South Horizon and ultimately received by Mr Jimenez. The claim was met by a dispute as to jurisdiction and that dispute was a long time in the gestation. Ultimately it did not come on for hearing until 2 and 3 October 2018. Judgment was handed down following that hearing on 16 January 2019 and a consequentials hearing was held on 6 February 2019. The orders made on that occasion were to dismiss Mr Jimenez’s challenge to jurisdiction… Mr Jimenez was ordered to pay the costs of the jurisdiction challenge and ordered to make a payment on account of £200,000 by 20 February 2019. He has not made that payment…”

The fraudulent misrepresentations related to a proposed investment the defendant sought from Mr Ashley in a golf course development - or purported development - at Les Bordes in France.

The orders made on that occasion were to dismiss Mr Jimenez’s challenge to jurisdiction…

[5]The present claim is the second claim against the defendant, at least, relating to that development. Mr Wise also obtained judgment for £½ million against the defendant in 2013, for breach of trust with respect to money Mr Wise paid to the defendant by way of investment. In that case, the trial judge, Penelope Reed KC, found that, despite the defendant confirming at trial (presumably on oath or affirmation), the truth of his pre-trial witness statements, in two respects those statements were, in the first case, “simply not true” and, in the second case, “clearly untrue”.

[6]Nor is the present claim the first successful fraud claim against the defendant. Darius Khakshouri successfully sued the defendant for fraudulent misrepresentation in 2017 in relation to a loan Mr Khakshouri made to support Charlton Athletic Football Club. In that case too, the trial judge, Green J, was critical of the defendant as a witness of truth, saying at [84]-[86]: “…the account of Mr Jimenez changed significantly over the course of the proceedings, and in particular from the early days of the litigation when he denied making any representation at all about control (when his memory should have been sharpest) to the later stages of the litigation when he suddenly accepted that he did in fact make a representation about control (but when on his own account his memory was at its least reliable)… …Mr Jimenez’s evidence has…been inconsistent on this key issue throughout the litigation… …I do not find [Mr Jimenez’s] evidence remotely convincing”.

…Mr Jimenez’s evidence has…been inconsistent on this key issue throughout the litigation…

[7]So too, in the present claim, has Master Marsh been critical of the defendant, including as a witness of truth.

[8]In a judgment given on 6 February 2019, the Master said, of an interim application made by the defendant, that it:

“…absorbed a vast amount of time and it engendered a huge amount of evidence. It was…properly characterised as a late construct…It was also…a ploy.”

[9]On the merits of the defendant’s defence to the present claim, the Master was highly critical of the defendant. The defendant advanced two defences; first, that, in effect, the purpose for which the defendant held Mr Ashley’s money changed following a private conversation between them and that it was no longer being held for the purpose of the golf course development. Of that defence, the Master said:

“I think it is fair to describe Mr Jimenez’s case in this respect as a complete fantasy. I am satisfied that such a conversation never took place. It is, to be candid, absurd to think that experienced businessmen would agree to keep such an arrangement secret from their legal advisers such that even a year later Mr Muir was apparently unaware of it. I am satisfied that this conversation did not take place.”

On the defendant’s second defence, the Master said:

“The second plank of Mr Jimenez’s defence is based on an agreement said to have been concluded on 17 September 2008 following an incident at the Bahri Bar in Dubai. The veracity of this agreement is a matter considered extensively in my earlier judgment, and in particular there are six points set out at paragraph 74 of that judgment which cast very considerable doubt on the 17 September 2008 document. There is very strong handwriting evidence from Mr Radley, which he describes as being conclusive, to the effect that Mr Ashley did not sign that agreement. There are numerous other concerns about it, not just to do with its late production but the fact that the agreement on its face is inconsistent with a position previously adopted by Mr Jimenez. It is also inherently improbable that Mr Ashley should have been so grateful to Mr Jimenez for the services he claims to have provided that he was willing to give him £10 million for such services. Last but not least, the evidence about the timing of the services said to have been provided by Mr Jimenez does not fit with the unimpeachable evidence of Mr Sturman QC and Mr Cadman of Russell-Cooke, which is summarised at paragraph 74(6) of my judgment. I am satisfied on the balance of probabilities that the 17 September 2008 agreement is a forgery prepared by Mr Jimenez for the purposes of bolstering his defence in the claim. It is a false document.”

[10]It is unsurprising perhaps that, following the hearing on 31 May 2019, at which the Master rejected the defendant’s defences, he entered judgment against the defendant in Mr Ashley’s favour in the sum of £3 million.

[11]That judgment sum, and the interim costs order of £200,000 to which I have referred (which was made in favour of both Mr Ashley and St James Holdings Ltd) remain unpaid. Together with interest (including compound interest on the £3 million judgment sum), apparently between about £5 million and over £6 million is now owing, principally to Mr Ashley, from the defendant.

[12]The claimants and their lawyers have been trying over the last 6 years to enforce the judgments against the defendant, with only limited success and in the face of significant obstacles.

[13]Deputy Master Rhys made an order (“the Part 71 order”) on 21 September 2021 (endorsed with a penal notice) under CPR 71 for the defendant to attend for examination “about [his] means and any other information needed to enforce the judgments”. The Deputy Master also ordered the defendant “at that time and place [to] produce at court all documents in his control which relate to his means of paying the amounts due under the judgments or orders [and also to] produce those documents set out in [an] attached list” including:

“Bank statements for all bank or building society accounts held by or for the Defendant for the last 2 years, whether legally or beneficially, in his sole name or in joint names with another person, and whether in this jurisdiction or any other. Tax returns and any prepared accounts of the Defendant for the last 10 years, whether filed in this jurisdiction or any other. … Copies of all statements for any other financial assets, including pensions, SIPPs, ISAs and other savings or investments held in the Defendant’s name, whether held solely or jointly with another person, or held on the Defendant’s behalf.”

The Part 71 order also contained the following standard information:

“Documents in your control You must produce all documents which confirm the information required. If you do not have them in your possession, you must get them if you can. … If a list of additional documents is attached to this order [as it was as I have explained], these too must be produced.”

The Part 71 order also contained the following standard information:

[14]In the last 3½ years since the Part 71 order was made, the defendant has not been examined as ordered by the Deputy Master.

[15]The issues I have had to determine relate to the claimants’ attempts to bring about a Part 71 examination, and it is to those attempts I now turn.

[16]The examination was fixed for 27 October 2021. The defendant did not attend. The Deputy Master who was due to conduct the examination certified that the defendant had not complied with the Part 71 order. In accordance with CPR Part 71, the matter was referred to a High Court Judge.

[17]Mellor J made a suspended committal order in consequence on 20 December 2021 (“the suspended committal order”). The order recited that the date of the examination had already been changed from that specified in the Part 71 order. It also recited that the judge was satisfied that the defendant had “deliberately and intentionally” not complied with the Part 71 order and that he was in contempt of court. In consequence, the judge ordered: “…that Tony Michael Jimenez be committed to Her Majesty’s Prison Wandsworth for a period of 60 days and that: 1. This order is suspended so long as Tony Michael Jimenez attends a hearing before Deputy Master Dray on 11 January 2022 at 10:30 am and complies with the Part 71 Order, the hearing to be conducted as Deputy Master Dray may direct, including, if necessary, as a remote hearing and/or with provision for Tony Michael Jimenez to produce the documents required by the Part 71 Order. 2. If Tony Michael Jimenez does not comply with these terms, a warrant of arrest shall be issued and Tony Michael Jimenez shall, when arrested, be brought before a Judge to consider whether the committal order should be discharged.”

and that:

[18]On the same day, Deputy Master Dray ordered that the examination be a remote hearing and that:

“Pursuant to paragraph 1 of the Suspended Committal Order, the Defendant…shall produce copies of the documents required by the Part 71 Order (as such order is defined in the Suspended Committal Order) by scanning the documents as necessary and by providing the documents electronically (by email or other online means such as Dropbox link) to both the court and also to the Claimants by 4:00 pm on 6 January 2022.”

[19]The examination did not take place on 11 January 2022. On that date, the Deputy Master ordered that:

“The renewed hearing for the oral examination of the Defendant pursuant to the Part 71 Order be adjourned generally with liberty to restore and the requirement that the Defendant provide copies of the documents required by the Part 71 order shall be stayed generally with liberty to restore.”

[20]The examination did not take place because, a few days before it was due to do so, the defendant applied - or rather his solicitors did on his behalf - for an adjournment of the hearing, granted by the Deputy Master in due course, on the ground that the defendant may lack litigation capacity and so require the appointment of a litigation friend. Quite how the defendant could have instructed his solicitors to make that application on his behalf if, in fact, he did lack litigation capacity has not been explained.

[21]Deputy Master Nurse ordered a trial of the issue of the defendant’s litigation capacity on 9 May 2022 and ordered that the defendant submit to a medical examination on the claimants’ behalf for that purpose. The defendant did not do so. Shortly before the issue trial, the defendant’s solicitors wrote:

“Our instructions are that Mr Jimenez is no longer in the UK and that there is no date fixed for his return. He will not therefore be able to attend for an assessment on 28 October 2022, or any time before the hearing of the preliminary issue.”

[22]In the light of all the evidence, it would be fair to interpret what happened at this time as the defendant consciously failing, at least, to co-operate with the contemplated medical examination.

[23]In any event, the defendant abandoned his claim that he lacks litigation capacity shortly before the issue trial.

[24]On 17 November 2022, Master Marsh therefore approved a consent order (“Master Marsh’s order”) which recorded that the parties accepted that the defendant has litigation capacity. The Master also ordered that:

“A further hearing for the oral examination of the Defendant pursuant to the Part 71 Order and as directed by paragraph 1 of the Suspended Committal Order shall be listed on the first open date after 7 January 2023 with a time estimate of ½ day. Dates to avoid are to be supplied by 4:00 pm on 25 November 2022. Pursuant to paragraph 1 of the Suspended Committal Order, the Defendant…shall produce copies of the documents required by the Part 71 Order (as such order is defined in the Suspended Committal Order) by scanning the documents as necessary and by providing the documents electronically (by email or other online means such as Dropbox link) to both the court and also to the Claimants by 4:00 pm on 14 December 2022. For the avoidance of doubt, the terms of the Suspended Committal Order shall apply in relation to the above hearing and the provision of documents as required by this Order…”

The third issue I have to determine relates to the second paragraph of the Master’s order I have just quoted.

[25]The examination was then listed for 20 March 2023. Three days beforehand, on 17 March, Master Brightwell adjourned the hearing and ordered as follows:

“The Defendant is, upon not less than 7 calendar days’ notice of the appointment date(s), required to submit to medical assessment by the following experts appointed by the Claimants for the purposes of determining whether he is suffering from any (i) mental impairment; or (ii) any physical impairment because of a neurological condition, such that he is unable to attend Court for examination as to his assets: a. Jeremy Berman, a consultant forensic psychiatrist; b. David von Brandt, a clinical psychologist; and c. A consultant neurologist (or equivalent neurological medical expert) which the Claimants shall identify to the Defendant by 31 March 2023. … Unless the Defendant attends the appointments made for the purpose of and submits to assessment by the Claimants’ medical experts as required by this order, then he shall be debarred (without further order being necessary) from relying on any medical evidence in support of his contention that he is unable to attend Court including for the purposes of being examined as to his assets under CPR Part 71.”

The first and second issues I have to determine relate to this order.

[26]Master Brightwell made his order because, a week before the adjourned Part 71 examination, the defendant applied for a further adjournment on the ground that he was unfit to be examined, including, apparently, on the ground that, only a few days before his application, he was diagnosed as suffering with suspected Guillain-Barré syndrome. Dr Fathers - the claimants’ consultant neurologist - has explained, uncontroversially, the symptoms of Guillain-Barré syndrome as follows:

“a rapidly evolving, progressive weakness affecting the arms and legs and possibly the face or breathing muscles. The symptoms usually result in someone being admitted to hospital as the weakness is so severe that most people cannot walk. … Had the Defendant suffered from Guillain-Barré syndrome…it would have reached its peak severity within four weeks and then would have gradually improved. The majority of individuals would make a near complete recovery within a few months. Occasionally it can take longer than six months…”

[27]There is a dispute between the parties about whether, in relation to documents, the defendant has complied with Master Marsh’s order, whether, in relation to medical examination, the defendant has complied with Master Brightwell’s order, and also whether or not the defendant is medically unfit to be examined. As a result, the claimants issued an application on 16 January 2024, which came before Rajah J, who then made the 14 June 2014 order (“Rajah J’s order”), as a result of which I have to determine the three issues I set out at the beginning of this judgment. The judge directed that the issues be determined by a Master. Most likely for that reason, the judge did not also direct that, at the trial, there should also be a determination about whether the following order should be made as sought by the claimants; that is:

“An order/determination that the Defendant failed to comply with paragraph 3 of the Order of Deputy Master Marsh dated 17.11.22, and thereby breached paragraph 1 of the Order of Mellor J dated 20.12.21 such that the suspension on his committal to prison is lifted. An order is also sought that this breach be referred to a High Court Judge as necessary for the issue of a warrant of arrest, or for such a warrant to be issued.”

[28]Before turning to how the dispute has arisen, and also to evidence to which I was referred and which I heard, and to counsel’s submissions, I should make a few points about Rajah J’s order.

[29]First, the first issue - namely, whether or not the defendant failed to submit to examination by Dr Fathers on 13 May 2023 and/or to examination by Drs Berman and von Brandt on 7 July 2023 - does not also require me to determine whether or not the defendant should also be barred from relying on medical evidence on the second issue. I do not understand Rajah J to have determined that that would be the consequence of the defendant’s non co-operation, if any, with the claimants’ expert. Rather, that would be, I am satisfied, the clear effect of Master Brightwell’s order.

[30]Secondly, I can only determine the second issue – namely, whether or not the defendant is medically unable to attend court on the grounds specified in Rajah J’s order – as at today’s date, and on the material before me. Any decision about the defendant’s health in the future would be largely, if not wholly, speculative. Also, the only medical conditions I can consider, in accordance with Rajah J’s order, are any mental impairments the defendant may have and any physical impairment he may have “by reason of a neurological condition”.

[31]Thirdly, because, in fact, the issues trial ordered by the judge has been before me, sitting as a High Court Judge, without objection (properly, in my view), the claimants have invited me to determine what, if any, consequence should follow if I decide that the suspended committal order has been breached. As has been apparent to the parties during the trial, and as I discuss below, what, if any, consequence might follow from a finding that the defendant has breached Master Marsh’s order and from any further finding, in consequence, that the defendant has breached the suspended committal order, has particularly exercised me. I am particularly grateful for counsel’s comprehensive submissions on these questions. CPR 71.8 provides:

“(1) If a person against whom an order has been made under rule 71.2 - (a) fails to attend court; (b) refuses at the hearing to take the oath or to answer any question; or (c) otherwise fails to comply with the order, the court will refer the matter to a High Court judge or Circuit Judge. (2) That judge may, provided the judgment creditor has complied with rules 71.4 and 71.5, hold the person in contempt of court and make an order punishing them by a fine, imprisonment, confiscation of assets or other punishment under the law. (3) If such an order is made, the judge will direct that - (a) the order shall be suspended, provided that the person - (i) attends court at a time and place specified in the order; and (ii) complies with all the terms of that order and the original order; and (b) if the person fails to comply with any term on which the order is suspended, they shall be brought before a judge to consider whether the order should be discharged.”

There has been no dispute between the parties that a debtor in default of a suspended committal order made under CPR 71.8 is brought before the court, as required by CPR 71.8(3)(b), on a bench warrant. Consistently with CPR 71.8, Mellor J, in the suspended committal order, set out what is to happen if there was a breach of it; namely, that:

“If Tony Michael Jimenez does not comply with these terms, a warrant of arrest shall be issued and Tony Michael Jimenez shall, when arrested, be brought before a Judge to consider whether the committal order should be discharged.”

A significant issue between the parties, which I have to determine (as I have said, without objection) is whether I ought to issue a bench warrant against the defendant.

[32]I ought also to make the following point. I have considered all the evidence to which I was referred and which I heard, and all of counsel’s submissions and the material which they drew to my attention, but I do not set all of that out in this judgment. Rather, by this judgment, I make my decision and give my reasons for it, so that the parties know why I have reached my decision.

Medical examinations and reports

[33]As I have indicated, the claimants’ consultant neurologist is Dr Edward Fathers. An appointment for the examination of the defendant was arranged with him for 13 May 2023. The defendant attended the appointment. Dr Fathers prepared a report on 25 May 2023. I set out some of its self-explanatory content verbatim:

“The assessment took place over one hour and 45 minutes. For the first 20 minutes, the Defendant was able to provide answers to direct questions. Then after about 20 minutes, the Defendant stated that he felt exhausted and needed to rest. There was therefore a pause in the assessment. The Defendant then left the consultation room to go and visit the bathroom, with the assistance of his son… The Defendant returned from having visited the bathroom, and from then on appeared to be much less responsive to any questions. The Defendant had his eyes closed most of the time, and appeared to be half asleep and only provided very brief answers to my questions. The Defendant was asked on several occasions if he needed another rest or more time in order to provide any further answers. … I attempted to assess the Defendant’s level of cognitive function…. …I found it was not possible to assess his score with the assessment of cognitive function, as there appeared to be a low level of attention and compliance with the requests. … An assessment of the cranial nerves was attempted. His visual fields appeared to be normal to confrontation. I was not able to assess his pupil responses to light or accommodation, as he would not keep his eyes open and kept closing them. I was also not able to examine his optic discs using an ophthalmoscope, as he would not keep his eyes open. An attempt was made to assess his eye movements; however, he did not follow the target reliably, and his eyes did keep closing, so I was not able to fully assess this. In the brief assessment that I did have of looking at his eye movements, I did not see any restrictions of gaze to the left, right, up or down. There was no evidence of nystagmus or jerky eye movements. … Power testing was challenging, as the Defendant did not comply with my instructions to maintain as much strength as possible, when I was testing if he could overcome movements at various joints…When I lifted his arm up and asked him to keep it up, it immediately dropped down. However I did note, that his arm had enough strength to help push himself backwards on the bed, which would require him to lift his body weight in order to slide backwards. On assessing his leg power, once again there was a collapsing, give-way pattern of weakness; however, the degree of strength was enough for him to get up out of a chair unaided, walk and get up and off the couch. … The assessment of the Defendant was not straightforward. For the first 20 minutes of the assessment, the Defendant, whilst appearing subdued and quiet, was able to reply to questions relatively promptly with answers that were clear and easy to understand… … After about 20 minutes of the assessment being completed, the Defendant stated he felt exhausted and needed to leave the consultation room to visit the bathroom, which he did. He was able to get up and walk to the bathroom, holding onto his son’s arm. When the Defendant returned after visiting the bathroom, the assessment then became much more difficult, as most of the time the Defendant appeared to be very drowsy and provided much shorter, very brief responses. After about an hour of the assessment, the Defendant’s responses shortened to just one-word answers, and sometimes I was not able to understand what he had said. … The Defendant did not appear to be engaged when I attempted to do a screening test for his cognitive function, and therefore I was not able to determine whether there is likely to be a significant impairment of cognitive function or not. When performing a neurological examination on an individual there does need to be active engagement with the process. The Defendant appeared to be drowsy and did not comply with some of the requests I made when attempting to perform an examination. Therefore, the examination findings were impaired as a result of this. For example, I was not able to do an assessment of pupil reactions, assessment of eye movements and I was not able to visualise the optic discs. However, despite these limitations, on the evidence I had from the examination that was possible of the cranial nerves (examination of the head and neck area), I did not identify any significant pathology or abnormalities. When assessing the limbs, I could see no evidence of any muscle wasting, asymmetry or any other signs that there was a serious underlying disease of the muscles. Testing strength in the limbs requires concentration, focus and cooperation from the subject. The Defendant did not fully engage with power testing. It was therefore not possible to determine if there was any underlying weakness in any of the limbs. However, from the observations I made of the way he moved, got out of a chair, moved across the consultation room, got on and off the couch and moved his position on the couch, I could see no evidence that there was any significant impairment of limb function. He was able to walk up and down the consultation room, without assistance, although he did do it rather slowly and cautiously. … The Defendant does appear to have several underlying medical problems. [Dr Fathers then identifies them]. The Defendant did not fully engage in the assessment, but there was enough cooperation for me to be able to form an opinion on whether or not there is a significant neurological condition, that could prevent the claimant from being able to travel to attend a court hearing in the United Kingdom. … It is my opinion that, on the balance of probabilities, the Defendant probably does have a condition [which Dr Fathers then identifies]. However, this is not likely to be leading to any significant impairment. This is because there was no evidence of any muscle wasting, reduced muscle tone or evidence of significant weakness. … I found no evidence from the history provided that the Defendant has suffered with Guillain-Barré syndrome. … It is not possible during a clinical assessment to determine with any certainty whether or not an individual who reports fatigue is genuinely disabled with this symptom or not. … It is likely, on the balance of probabilities, that the Defendant does have a disorder [which Dr Fathers identified earlier in his report], giving rise to absent reflexes and impaired sensation. It is my opinion that this would not result in significant impairment of function, and would not preclude the Defendant from being able to attend Court for a hearing. It is possible that in order to attend a Court hearing in the United Kingdom, the Defendant may require some additional assistance, for example, the use of a wheelchair if he were experiencing fatigue.”

[34]Master Brightwell’s order also required the defendant to submit to an examination by Dr Jeremy Berman, the claimants’ consultant forensic psychiatrist and Dr David von Brandt, the claimants’ clinical psychologist.

[35]The assessment was fixed, on 7 June 2023, for 7 July. The claimants’ solicitors notified the defendant’s solicitors that 5½ hours were needed for the assessment. The defendant agreed to that assessment (unusually, on condition that no private investigator was instructed on the claimants’ behalf on about 7 July).

[36]On 5 July, the claimants’ solicitors notified the defendant’s solicitors that the assessment would begin at 1:00 pm on 7 July. The following day, the defendant’s solicitors changed the start time for the assessment to 4:00 pm. This gave rise to the risk that a 5½ hour assessment could not practically be carried out on 7 July, because a start time of 4:00 pm is so late in the day. Nevertheless, that risk was apparently mitigated because the defendant’s solicitors then confirmed that there would be no restriction on the time available for the assessment.

[37]The defendant attended the 7 July appointment. Dr Berman’s and Dr von Brandt’s report is also self-explanatory. It is short. I set out verbatim most of its content:

“We had scheduled the assessment for 13:00 on 7 July 2023, with an estimated duration of four to six hours. This approach had been taken to enable a full neuropsychological assessment, as well as allowing sufficient observation of the alleged cognitive or functional impairment. We discovered on 6 July 2023 that our assessment had been pushed back from 13:00 to 16:00 ‘due to changes in room availability at the medical practice’ by Mr Jimenez’s legal representatives. We note, however, that when we eventually assessed Mr Jimenez, the assessment took place in Dr Borsani’s office. Dr Borsani appeared to act as a chaperone for Mr Jimenez, and waited in a nearby office for the duration of the assessment. When we arrived, a man who introduced himself as Mr Jimenez’s cousin and carer demanded we produced some form of ID, claiming the Spanish police had requested our details and credentials. He appeared somewhat aroused and agitated. Only one room was made available, despite a second breakout room having been arranged. Dr Borsani mentioned something in passing about Mr Jimenez’s ‘suicidality’, and ‘being very bad’ while escorting us to the room. Mr Jimenez was already seated in Dr Borsani’s office when we were taken there. We observed Mr Jimenez sitting in a wheelchair with a crutch resting across his body. His eyes were closed, and he sat slumped forward with his head resting on his right hand. Mr Jimenez’s hair had recently been cut, but appeared superficially dishevelled. Both his fingernails and toenails were neatly trimmed. He wore clean clothes and flip-flops, despite the impression that his mobility was severely impaired. There was a disconnect between his expensive looking t-shirt and more casual sweat pants. His skin appeared healthy. He had shaved in the past 3-4 days. There were no shaving cuts. He appeared well nourished and hydrated. We did not observe any bruising or grazes. His respiratory rate was within the normal rate. There was no evidence of agitation. There was no evidence of muscle wasting or peripheral oedema. His muscle tone was normal and he was able to support his head in his hand throughout the interview. We did not observe any signs of catatonia or abnormal postures. Neck tone was normal and we did not observe any hypnic jerks when Mr Jimenez flexed his neck. He did not rouse in response to external stimuli. Dr Berman called Mr Jimenez’s name three times loudly in close proximity. There was no response to objects being dropped onto the floor loudly, or the door being opened and closed. His eyes opened briefly on a few occasions, but he did not acknowledge our presence. When he coughed, his body tone was normal and he covered his mouth with either hand. He made some grunting noises and engaged in some incoherent articulations. We observed brief episodes of twitching of his hands on several occasions throughout the hour we observed him. Mr Jimenez covered his face when Dr Berman started explaining the Court had ordered us to carry out an assessment. Mr Jimenez, on two occasions, pushed himself up, seemingly as his slumped position was becoming uncomfortable. As his head rested on his right hand, with his right arm on the armrest, his left arm continued to hold his crutch. When his foot dropped to the floor, Mr Jimenez was able to mobilise his lower limbs independently. Mr Jimenez switched to resting his head on his left hand, with his left elbow on the armrest, and stretched both legs. At 16:47, he appeared to wince in pain after his left knee cracked after extending it. Mr Jimenez did not respond to numerous invitations to report symptoms or talk to us. Dr Borsani and the cousin entered the room at 16:55. Dr Borsani asked whether Mr Jimenez was in distress. At 17:01, Dr Borsani informed us he needed us to leave by 17.30, as he had to ‘lock up.’ The opening hours, according to the Clinic’s website, are from 08:00 to 20:00. As we waited in the reception area after the assessment, we observed Mr Jimenez’s cousin wheel him out and return the wheelchair a couple of minutes later to the clinic reception area. … In our clinical opinion, Mr Jimenez’s presentation during the hour we observed him on 7 July 2023 was not consistent with any mental disorder we are aware of. … For the avoidance of doubt, we are not aware of a mental disorder, including any psychiatric or neuropsychological disorders, which would manifest in the apparent state of altered consciousness, as suggested by Mr Jimenez’s presentation on 7 July 2023, in the absence of other contributing factors, such as acute intoxication or a severe neurological disorder.”

The defendant’s cousin referred to is Mr Stefan Thwaites. Dr Umberto Borsani is the defendant’s treating general practitioner. He is also presented, by the defendant, at this trial as an expert on the medical matters which I have to determine.

[38]Following the 7 July appointment, Mr Thwaites and Dr Borsani made written complaints to Dr Berman’s and Dr von Brandt’s regulators. Both complaints are dated the same day, 10 July 2023.

[39]The health care regulators to which the complaints were made have rejected them. Except for a final section of Dr Borsani’s complaint, which does not also appear in Mr Thwaites’ complaint, there is a marked similarity in the language used in both complaints, as there is in the way the complaints have been laid out.

[40]Dr Borsani’s letter of complaint (“the complaint letter”) (where it is mirrored by Mr Thwaites’ complaint) says:

“I am writing to report a distressing incident of severe unprofessional conduct during the recent assessment of my patient, Tony Jimenez…. One of the primary concerns observed during the assessment was the initial reluctance of the doctors to confirm their medical credentials, a legal requirement here in Spain. Although they eventually presented their passports, they failed to provide any definitive proof of their status as licensed doctors on the day of the assessment, which raises serious doubts about their professional integrity. Moreover…I was appalled to observe the complete absence of empathy and sympathy for Tony’s condition within minutes of the assessment. One of the doctors engaged in aggressive shouting, creating an intense confrontation that disturbed both myself and those present in the adjacent waiting area. Such behaviour stands in stark contrast to the expected conduct outlined by our medical code of ethics. Adding to the distressing situation, Tony’s severe illness on the day of the assessment rendered him non-responsive. Prior to the assessment, I had examined him and noted that his blood pressure, despite being treated with [list of drug dosages] for hypertension and other medications, was at a worrying level of 195/135. Instead of displaying the patience and understanding that our profession demands, one of the doctors exhibited visible irritation and resorted to screaming at Tony - an, unequivocal violation of our ethical obligations to patient care. Throughout the duration of the 1 hour and 10-minute assessment, Tony was provided with no opportunities for comfort breaks or access to water. Additionally, the doctors made no effort to address these basic needs or leave the room. This flagrant disregard for the well-being and dignity of the patient represents a profound departure from the professionalism that should be upheld at all times. Furthermore, an attempt was made by the doctors to misrepresent the conversation we had. They falsely claimed that I had dictated a requirement to finish the assessment at 5:30 pm. In reality, I had simply communicated that the room would need to be vacated at that time for other purposes but they would be able to use other rooms in the clinic for however long they needed. However, the doctors prematurely concluded the assessment at 5:10 pm, stating that they had completed all they could due to Tony’s condition. Even though I then even extended the offer for them to return the following day or on Monday if additional time was needed, they declined. This deliberate misrepresentation where they sought to use me as curtailing their assessment raises further concerns about their integrity and adherence to professional standards. As a healthcare professional who witnessed these events, I find the aggressive and disrespectful treatment inflicted upon Tony, a gravely ill individual, by these doctors to be an egregious breach of our medical code of conduct. I implore the General Medical Council to conduct a thorough investigation into this matter and take appropriate action to prevent the recurrence of such unprofessional behaviour, thereby safeguarding the integrity of our noble profession…”

[41]The final section of Dr Borsani’s complaint says:

“I believe they may have been influenced prior to their attendance by those who instructed them and were given a false opinion of the patient’s condition. I urge the GMC to examine all correspondence between these doctors and their instructing parties to determine the nature of their briefing. … Furthermore, I believe it is crucial to highlight that this group of individuals engaged in litigation with this patient has made several attempts, using UK registered mobile numbers, to corrupt me and tarnish my professional reputation. When I refused their requests for rogue medical certificates and prescriptions without proper examination, they resorted to insults and even threats of physical harm, even threatening murder. Such behaviour is unprecedented in my career of over 20 years of professional experience as a doctor and has only occurred since I began treating this particular patient. I have already reported these incidents to the relevant medical authorities here in Spain, and I now intend to file a formal complaint with the national police to initiate a criminal case against the individuals I believe are responsible for these actions. I trust that the General Medical Council will address this matter with the utmost seriousness it deserves and take decisive measures to rectify the situation. Your prompt attention to this complaint is deeply appreciated.”

[42]Dr Borsani provided an expert report on 5 August 2024. It is not clear whether it was prepared on the basis of a medical examination carried out for the purpose of this trial, rather than on the basis that Dr Borsani has been the defendant’s general practitioner “over the past years” who has regularly examined him. In it: a. Under the heading “Mental Capacity”, Dr Borsani says:

“The patient currently lacks the capacity to make informed decisions about his health and safety. He is unable to understand, retain, and weigh relevant information or communicate his decisions effectively.” (He later concludes that the defendant has a “suspected” mental impairment (which he specifies), apparently without any foundation whatever save perhaps for a Spanish-language (untranslated) report from a doctor based at a hospital in Malaga, which, whatever it says, represents that doctor’s, not Dr Borsani’s, opinion). b. Dr Borsani then has a section headed “Psychological Symptoms” and a section headed “Physical Symptoms”. c. Under the next heading, “Physical Examination”, Dr Borsani says: “- Physical Examination: Vital signs are within normal limits, but the patient appears physically weakened and undernourished. There are no signs of acute physical illness or injury.”

Despite this assessment, Dr Borsani expresses the opinion that the defendant has “a history of Guillain-Barré syndrome”, but offers no foundation whatever for the claim.

[43]A number of features are notable from reading the report:a. Dr Borsani provides no, or hardly any, particulars of events or observations, if any, on which he has based his opinions.

b. He may offer no foundation whatever for his claims that the defendant lacks capacity and has a specified “suspected” mental impairment. If the foundation for the claims is said to be the Malaga hospital doctor’s report, there is nothing in the report to indicate that Dr Borsani made his own independent assessment of the defendant’s capacity. The claim that the defendant lacks capacity has to be judged in the knowledge that, having had a considerable period of time to explore the defendant’s litigation capacity when the defendant put that in issue, the defendant has accepted that he has litigation capacity.

c. Dr Borsani does not apparently express the view, based on his own examination of the defendant, that any physical impairment the defendant has is by reason of a neurological condition. To the contrary, Dr Borsani appears to suggest that, on the basis of his examination of the defendant, other than being weak and undernourished the defendant shows no signs of any physical impairment and, in event, shows no signs at all of any acute physical impairment. Nevertheless, Dr Borsani makes the claim, apparently unfounded in his report, that the defendant has suffered from Guillain-Barré syndrome.

d. Nor does Dr Borsani say that the mental impairments he reports mean that the defendant is medically unable to attend court for examination.

Oral evidence

[44]The claimants’ experts and Dr Borsani attended the trial for cross-examination. No-one else did (save for the claimants’ solicitor, William Johns, who formally confirmed his witness statement filed in support of the present application, on which he was not cross-examined, in fact).

[45]The parties agreed that witness statements filed by the defendant (in relation to an earlier application) and by Mr Thwaites for the present application (and his complaint which, effectively, his witness statement sought to introduce into evidence), and expert medical reports prepared for the defendant other than Dr Borsani’s report to which I have referred, could not be relied on by the defendant in support of his case, because of para.10 of Rajah J’s order. In fact, the judge’s order was somewhat more restrictive than that to a degree and somewhat less restrictive to another. The order the judge actually made was that witness statements and expert reports permitted by his order could not be read without the court’s permission if the maker of the statement or report did not attend trial for cross-examination.

[46]I turn now to the doctors’ oral evidence.

Dr Fathers

[47]He explained that he was part-way through taking the defendant’s medical history when the defendant asked for a break to use the bathroom, and, because of the marked change in the defendant presentation after the break, he could not take the defendant’s complete medical history.

[48]He explained that, although the defendant was in a wheelchair when the defendant asked for the break, he was able to stand up and, with his son’s help, walk out of the examination room.

[49]When the assessment resumed after the break, and Dr Fathers tried to continue to take the defendant’s medical history, the defendant did not respond at all to some of the questions and did not provide useful responses to other questions. In fact, Dr Fathers said, the only answer which was not monosyllabic which the defendant gave after the break about his medical history was to a question about his mental health.

[50]Dr Fathers explained that there was a complete change in the defendant’s presentation after the break. Before the break, the defendant had responded spontaneously and clearly to his questions, in full sentences, but without elaboration. Indeed, he observed no decline in the quality of the defendant’s answers to his questions before the break as it approached.

[51]Dr Fathers said that neurologists are sometimes faced with a lack of co-operation because a patient is in a sleepy or subdued state but that they do not see such a rapid change in a patient’s presentation as the defendant displayed.

[52]He said that, on the defendant’s return to the examination room, the defendant presented as if he had been administered with a sedative, not so strong as to make the defendant unconscious, but strong enough so that he was barely able to engage.

[53]Some of Dr Fathers’ cross-examination sought to investigate whether the defendant might have chronic fatigue syndrome, but, whilst Dr Fathers did not hold himself out as being an expert on chronic fatigue syndrome, because it does not have a neurological cause, he was clear that the defendant’s presentation, of being partially asleep, was something different to the fatigue (or lack of energy) noted by those with chronic fatigue syndrome.

[54]He said that, apart from being intoxicated by drink or drugs, there is no neurological condition which might explain the defendant’s change in presentation.

[55]Dr Fathers explained that lorazepam, which has been prescribed to the defendant, can cause drowsiness and, at my invitation, established that, if administered orally, it starts to work within 20 to 30 minutes of administration, if administered intravenously, it starts to work within a minute of administration, and, if administered intramuscularly, it starts to work within 15 minutes. The defendant has been prescribed a 1mg dose of lorazepam. Dr Fathers said that the lowest dose is ½mg and the highest dose in routine use is 2mg.

[56]Dr Fathers was cross-examined about the high blood pressure readings which he obtained from the defendant, but, discounted those as a cause, or a symptom, of an impairment which might explain the defendant’s non-compliance with the examination.

[57]He explained that some of the defendant’s reflexes on the upper left side of his body were absent, as they were from both ankles. He explained that the most common cause of the absence of ankle reflexes is peripheral neuropathy, which could also cause an absence of reflexes asymmetrically, although the most common cause of an asymmetric absence of reflexes in the upper body is the pinching of cervical nerves in the neck.

[58]He said that, to fully assess the absence of the defendant’s left-side reflexes, a full strength and sensation examination would be required, which he could not carry out because of the defendant’s non-compliance.

[59]Dr Fathers tried to carry out a strength test, which requires a patient to resist pressure applied to their limbs. He noted momentary resistance by the defendant to pressure he applied to the defendant’s limbs, after which the defendant’s limbs gave way. Such behaviour is evident if the patient is not co-operative, either consciously or sub-consciously. Dr Fathers was clear that there is no neurological condition that might explain this behaviour.

[60]On physical examination, the defendant did not display any muscle wasting, Dr Fathers said. When he walked, his gait was slow and cautious but it was not characteristic of any neurological condition.

[61]The defendant did not exhibit any myoclonic jerks, including hypnic jerks, which are the sudden movements sometimes made as a person falls asleep. Nor did Dr Fathers observe any signs of catatonia.

[62]He could not fully complete vision-based tests, because the defendant did not keep his eyes open for long enough, but he noted that, when he was not carrying out vision-based tests, the defendant kept his eyes open for most of the time.

[63]Dr Fathers was asked about the report that the defendant has difficulty passing urine. He noted that the defendant has been prescribed Permixon for this and, having regard too to the defendant’s age, concluded that the defendant has a routine condition, which he identified.

[64]He explained that, despite the defendant’s non-compliance with the examination, he was nevertheless able to conclude that the defendant has a medical condition which he specified, which he described as more of an irritant than a disability. He continued that, despite the defendant’s non-compliance, he was able to conclude that, physically, the defendant does not have a significant neurological condition which would prevent him from attending court.

Dr von Brandt

[65]When Ms Read investigated whether it was appropriate for him and Dr Berman to examine the defendant at the same time, he said that he was unable to say whether or not a particular patient might, or might not, find that comforting or a burden. He also explained that it is good practice for an examination to be carried out by both a psychologist and a psychiatrist at the same time.

[66]He explained that the defendant did not engage at all with him or Dr Berman during the examination. They said hello to the defendant, but he did not respond. Dr Berman called out loudly, but did not shout, the defendant’s name, as one might if a patient is hard of hearing, but the defendant did not respond. Later during the 1 hour 10 minutes they were with the defendant, Dr Berman dropped a pad on the floor and opened and closed the examination room door, but the defendant did not respond. Nor, Dr von Brandt explained, did the defendant respond when he and Dr Berman announced that they were leaving, which they did in the hope that the defendant might respond. He estimated that they began at least 10 attempts to get the defendant to engage with them during their time with him, but without any success. Dr von Brandt rejected the suggestion that someone with depression, having suicidal ideation, and with other physical illnesses, cannot engage with an assessment of their mental health. He acknowledged that they may find it difficult to engage but, he said, if they wanted to engage, they could. He added that a lack of response to an attempted examination is not a symptom of depression.

[67]Dr von Brandt was asked at some length about whether it is appropriate for an expert to have in mind, before an examination, and to consider during the examination, whether a patient is malingering. He explained that, in the medico-legal context in particular, an expert is obliged to consider whether or not a patient is malingering and that it is standard practice for an expert to do so. Indeed, in answer to a question from me, I understood him to explain that psychologists routinely consider whether or not patients might be malingering. He explained that he went to the examination with an open mind and that he has considered whether the defendant was malingering on the evidence available to him.

Dr Berman

[68]Dr Berman was asked about the defendant’s medical history. He acknowledged that, in the late 1990s, the defendant had been diagnosed with mental disorder (“the relevant disorder”), which his treating physician at the time concluded was severe enough for the defendant to be offered an informal admission to hospital, but which was not so severe that the defendant was not able to go on holiday to Spain. Dr Berman said later that it did not follow, from the diagnosis of a mental disorder in the late 1990s, that the defendant has consistently been unwell since then.

[69]Dr Berman confirmed that it is highly likely that someone with a historic relevant disorder which was sufficiently severe to justify an informal hospital admission, who reports low mood and displays suicidal ideation, is suffering from a mental illness, if they accurately report their symptoms.

[70]Dr Berman was asked about the events of 7 July 2023. He said that, whilst he, Dr von Brandt and the defendant were in the same room, he was not sure that they “met” each other, because, I understood, the defendant did not co-operate with the doctors’ attempts to examine him.

[71]Dr Berman said that, on 7 July, the defendant was not unresponsive (that is, he was not unable to respond). Rather, he concluded, the defendant was non-responsive. Dr Berman explained that he called the defendant’s name loudly (but did not shout), but the defendant did not respond, and he dropped his mobile phone on the floor, but the defendant did not respond. He said that there was no psychiatric explanation for the defendant’s non-responsiveness. He explained that, even severely depressed patients will respond verbally, or non-verbally. He said that the defendant’s non-responsiveness was not because the defendant was asleep or unconscious, because the defendant continued to maintain muscle tone, which an unconscious person cannot do, and because the defendant’s neck movements were smooth for the hour that Drs Berman and von Brandt observed him, whereas someone falling asleep makes hypnic (jerky) movements.

[72]Dr Berman pointed out that the defendant did not display any outward sign of distress, except when he extended his left knee and it cracked.

[73]He was cross-examined extensively about whether the defendant might have been catatonic during the assessment, which he rejected as a possibility. He acknowledged that the defendant remained mute (that is, he did not respond to Drs Berman or von Brandt), which can be a sign of catatonia, albeit only if it was involuntary rather than elective, but, he explained, overall, that the defendant did not display any other sign of catatonia. The defendant did not display waxy flexibility (that is, he did not maintain a particular pose for an extended period) and he did not display perseveration (that is, he did not repeatedly respond in a particular way). Nor did he present with echolalia (that is, he did not repeatedly copy a word or sound he had heard), echopraxia (that is, he did not repeatedly copy a movement he observed), or negativism (that is, he did not resist commands or do the opposite of what he was commanded to do).

[74]Dr Berman added that, from his clinical practice, he is not aware of a catatonic patient whose catatonia has resolved without medical intervention, that, if the defendant had had repeated catatonic episodes, they are likely to have been recorded in his medical notes - but that, to the limited extent the defendant made his medical notes available, no such episodes were recorded or apparent - and that a patient with a diagnosis of catatonia, experiencing a significant number of catatonic episodes, is likely to be having intensive psychiatric treatment, which the defendant was not apparently having.

[75]Dr Berman explained that, because he was unable to completely assess the defendant as a result of the defendant’s conduct, he could not reach a concluded view about the nature or extent of any mental impairment the defendant was suffering on 7 July, but, he said, from his observation of the defendant on 7 July, he could conclude that the defendant’s non-responsiveness on the day could not be explained by any mental disorder, and that the conclusion that he reached, that the defendant’s non-responsiveness cannot be explained by any mental disorder, was reinforced by the defendant’s history, as a person facing significant litigation with a lot at stake, and by all the information available to him.

[76]Ms Read, Mr Miall and I explored with Dr Berman the possibility that he might have pre-judged whether or not the defendant was malingering on 7 July because of views he had formed from what he already knew about the defendant. Dr Berman explained that, as part of a comprehensive assessment, it is necessary to explore whether a patient is malingering. He said that, before the appointment, he already had in mind the real possibility that the defendant might be malingering, but, he added, he was very confident that he went to the appointment with an open mind, and, he added, even if he had known nothing about the defendant, he would have reached the same conclusions as he has done, based solely on his observation of the defendant on 7 July.

Dr Borsani

[77]English is not Dr Borsani’s first language. It is, in fact, his third language. Whilst he speaks English well, he does not speak it as well as a native speaker. It is important that I do bear that in mind when assessing his evidence, as I have done. The fact that Dr Borsani is not a native English speaker has also meant that, when he was giving oral evidence, I had to be careful to ensure that I had correctly understood the evidence he gave. I had to clarify the evidence he gave a number of times and I have since reflected carefully on the accuracy of my note of his evidence. I am satisfied that what I now set out reflects the evidence he gave (albeit that what I set out is less a verbatim note of the words he spoke than is my summary of the evidence of the other witnesses).

[78]Dr Borsani is a general practitioner, as I have said, who has been in practice for about 30 years. As he confirmed, he does not have expertise in the fields of neurology, psychiatry or psychology. Indeed, he did not believe he was attending court as an independent expert, bound by the requirements of CPR Part 35. Rather, he explained, he was attending court as the defendant’s treating general practitioner. He had read CPR Part 35 and signed an expert’s declaration, but, he said, he had not complied with the requirements of CPR Part 35 (and had not had regard to his letter of instruction) because the document he produced, which had been understood to be an expert report (parts of which I have set out above), was in fact no more than a standard post-consultation note he writes up after every consultation with every patient, which, he explained, had to be written in accordance with Spanish legal and professional requirements, not in accordance with CPR Part 35. Indeed, at one point in his evidence, he said that, “absolutely”, he had prepared his report/note before he saw his letter of instruction, and he said, more than once, that he did not know about the litigation.

[79]He was asked about the “Mental Capacity” section of his report/note. He explained that it was not his function as a general practitioner to carry out a capacity assessment. Nevertheless, he added that, in his medical opinion, the defendant does not have capacity.

[80]He was asked about the “Psychological Symptoms” and “Physical Symptoms” sections of his report/note. He accepted that, largely, the recorded symptoms were those which the defendant had reported to him that he was suffering. He said that, in addition to what the defendant had reported to him, the defendant’s family also reported to him their observations of the defendant, which he took into account.

[81]He was cross-examined about the possibility that the defendant might suffer from catatonia, during the course of which he explained, that, if a patient’s arm is raised and it then drops immediately, they are likely to be faking catatonia.

[82]He was referred to a report prepared, or purportedly prepared, by a psychiatrist on 6 March 2023 which first mentioned Guillain-Barré syndrome and which listed the defendant reporting symptoms as follows (in the English translation):

“He currently refers to a sensation of pins and needles in his fingers, feet, ankles or wrists. Weakness in the legs which extends to the upper part of the body. Unstable when walking or unable to walk or climb stairs. Difficulties with facial movements, including speaking, chewing and swallowing. Double vision or inability to move his eyes. Intense pain that may be felt as painful, stabbing or similar to cramp and can get worse at night. Difficulties with controlling his bladder and intestinal function. High heart rate. Blood pressure low or high.”

He was also referred to a report he prepared the next day, on 7 March 2023, which contains the following section:

“Symptoms are including: • A pins and needles sensation in your fingers, toes, ankles or wrists • Weakness in your legs that spreads to your upper body • Unsteady walking or inability to walk or climb stairs • Difficulty with facial movements, including speaking, chewing or swallowing • Double vision or inability to move the eyes • Severe pain that may feel achy, shooting or cramp like and may be worse at night • Difficulty with bladder control or bowel function • Rapid heart rate • Low or high blood pressure • Difficulty breathing”

The words Dr Borsani used are identical to those used in the Mayo Clinic’s website description of Guillain-Barré syndrome, as is their layout. Two particular features of the way the symptoms are presented should be noted. First, as on the Mayo Clinic website, some symptoms presented with the possessive adjective “your”, whereas other symptoms are not (for example, when referring to an inability to move “the” eyes). Secondly, one symptom is “low or high blood pressure”. The defendant had been recorded as having had sufficiently high blood pressure since 1984 that he had been prescribed medication to counteract it.

[83]Dr Borsani was cross-examined about the coincidence of the language in the two reports with the Mayo Clinic website and the way Guillain-Barré symptoms are presented in his report and on the website. He said that the symptoms listed in his report were those he observed from examining the defendant and that he did not copy that list from the Mayo Clinic website. He said that blood pressure can fluctuate, although he accepted that it would be very unusual for a patient with high blood pressure also to have low blood pressure. Indeed, he thought that, in his 30 years in practice, he had maybe had only one or two patients who have had high blood pressure and then given below normal blood pressure readings. On reflection, he did think that he received the 6 March 2023 report before he wrote his 7 March 2023 report the following day and that he took the symptoms he listed from the 6 March 2023 report.

[84]Dr Borsani was highly critical of all the claimants’ experts.

[85]He said that Dr Fathers had said to him: “You are a nobody. I am famous”, after which Dr Fathers did not speak to him. He then conceded, however, that, in fact, Dr Fathers did speak with him about the defendant’s medical history and had asked for scans and records. He conceded too (albeit, he denied at first) that he had given, as a reason to Dr Fathers, for not making any scans or records available, that he could not access them on a Saturday, which is the evidence Dr Fathers gave.

[86]He was asked about a letter he wrote on 29 June 2023 in response to the defendant’s solicitors being informed that Drs Berman and von Brandt needed many hours set aside to examine the defendant. He wrote:

“…it is essential to address the motive behind the request for a lengthier examination. It appears that the opposing party aims to burden and harm the patient rather than prioritize their medical care. This intention becomes evident when considering that no reasonable consultant, well-informed about the patient’s medical history, would endorse or request such an extensive examination. It is important for the court to recognize that my role as the attending physician is to act in the best interest of the patient, advocating for their health and well-being.”

He maintained that it was his medical opinion that the object of Drs Berman and von Brandt was to harm the defendant. He said that, in this context, he was not “advocating” for the defendant but was, instead, acting as his general practitioner.

[87]He described Dr Berman as having been aggressive to the defendant and he maintained the claim he made in the complaint letter that, in effect, they had pre-judged the defendant’s mental health because they had been given “a false opinion of [the defendant’s] condition”.

[88]He was cross-examined about the complaint letter. He said that he used his own words in the letter and that no-one gave him, or suggested, the words to write (although he later said that some of the words he used he took from what the Spanish police had written, in Spanish, following his denunciation to them about the threats made to him). He explained that, before he wrote the letter, he had told Mr Thwaites he intended to do so, but, he continued, he did not tell Mr Thwaites the words he intended to use (or the words Mr Thwaites should use in Mr Thwaites’ complaint) and Mr Thwaites did not tell him the words Mr Thwaites intended to use in his complaint of the same date. He said that he had never seen Mr Thwaites’ complaint. He explained that it is likely that he completed his letter in the morning and emailed it to the defendant’s family in the afternoon.

[89]He was asked to explain why he presented part of the complaint letter in square brackets. As I have shown, he wrote:

“Prior to the assessment, I had examined him and noted that his blood pressure, despite being treated with [list of drug dosages] for hypertension and other medications, was at a worrying level of 195/135”

(emphasis added). He said that he presented this part of the letter in this way to protect the defendant’s privacy.

[90]He said that he would not expect a doctor to be “sympathetic” to a patient and that Drs Berman and von Brandt cannot be criticised if they were not “sympathetic” to the defendant. He said, however, that they should have been “empathetic”.

[91]He acknowledged that Drs Berman and von Brandt had nothing to do with the threats made against him or the phone messages he had received which he reported in the complaint letter.

Discussion – the defendant’s health and his submission to medical examinations

[92]Whether or not the defendant submitted to examination by the claimants’ experts (the first issue I have to determine) may depend on the defendant’s health, which I have to consider to determine whether or not the defendant is medically unable to participate in a Part 71 examination (the second issue I have to determine). It is appropriate therefore that I consider that second issue first, which requires me to consider Dr Borsani’s evidence on a provisional basis, even though I may conclude later, when determining the first issue, that the defendant is not entitled to rely on that evidence at all.

[93]Although Dr Borsani was an engaging witness, I have concluded, for the following reasons, that I can give no weight to his evidence, even giving him as much credit as I can for the fact that he does not speak English as a native speaker.

[94]Dr Borsani is a general practitioner. He is not, and confirmed that he is not, an expert neurologist, psychiatrist or psychologist. In short, he is not an expert in any of the medical fields in which expert evidence might help me determine the second issue. Indeed, he did not believe that he was attending court as an independent expert.

[95]CPR 35 PD, para.2.2 provides that:

“Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.”

The importance of an expert confining their opinions to matters within their expertise is reinforced by CPR 35 PD, para.2.4, which provides that:

“Experts should make it clear…when a question or issue falls outside their expertise”

. Nevertheless, Dr Borsani felt able to express an opinion about the defendant’s mental capacity, even though he acknowledged that this was outside his expertise (and, apparently, that he had not carried out a capacity assessment).

[96]I have already identified significant defects in Dr Borsani’s report/note (see [41] above).

[97]Those defects are also likely to mean that the report is not CPR Part 35-compliant (cf. CPR 35 PD para.3.2). That the report/note is not CPR Part 35-compliant is hardly surprising(i) when, as Dr Borsani himself suggested, he had not seen his letter of instruction when he wrote the report/note and knew nothing about the litigation,

(ii) when he himself had not understood that he was producing anything other than his standard post-consultation note for a patient and

(iii) when he had apparently consciously not complied with CPR Part 35 because he understood that he had to comply with Spanish requirements. In this context, the criticism that can be made of Dr Borsani is that he signed the expert’s Part 35 confirmatory statement nevertheless. More significantly than that, as I have explained, in the report/note Dr Borsani either gives no (or hardly any) foundation for his opinions or, to the extent he does, appears to rely on the opinion of the Malaga doctor (about the defendant’s capacity) without questioning it, even though there are grounds to do so (because the defendant accepts that he has litigation capacity). On this basis alone, hardly any weight can be attached to the report/note. Whatever weight might otherwise have been attached to the report/note and to Dr Borsani’s opinions is reduced yet further because, as he explained, his opinions are based largely on what has been reported to him by the defendant and his family, who are, or may be, partisan.

[98]I am also very concerned about the circumstances in which other documents in Dr Borsani’s name came to be produced.

[99]I cannot accept that the symptoms list set out in the 7 March 2023 report was not simply copied and pasted from the Mayo Clinic website. Putting aside the identity of language and the layout of the list, I cannot accept that, if Dr Borsani was listing the defendant’s symptoms as he observed them (or as copied from the 6 March 2023 report), he would use the possessive pronoun, “your”, in the way and only the extent to which the Mayo Clinic does. Neither do I accept that a doctor observing symptoms would record that their patient has low “or” high blood pressure. Nor can I accept that the defendant was suffering from both low (below normal) blood pressure and high blood pressure, when he has been treated for high blood pressure for many years and has otherwise consistently been recorded as having high blood pressure. Taking into account also how Guillian-Barré symptoms are presented on the Mayo Clinis website, I have concluded that Dr Borsani was not telling the truth when he said that the symptoms list in the 7 March 2023 report was a list of the symptoms he observed in the defendant or simply copied from another report.

[100]I am not satisfied that Dr Borsani effectively copied Mr Thwaite’s complaint, despite the identity and, otherwise, similarity of language in that complaint and the complaint letter. On Dr Borsani’s evidence, it is likely that he typed the complaint letter in the morning and then sent it to Mr Thwaites. Mr Thwaites’ email was only sent in the afternoon.

[101]However, except in relation to the final section of the complaint letter (which principally related to intimidation of him), Dr Borsani did not tell me the truth when he claimed that the complaint letter was in his own words uninfluenced by anyone else, or, alternatively, that the words used were translated from the police’s Spanish record of his complaint to them (which, in turn, can only have been based on what he reported to them).

[102]Someone with sufficient facility in English to write or read the letter is likely to have known that including text in square brackets with an instruction to list drug dosages, as the letter does, is grammatically infelicitous. Such a person is unlikely to have allowed that text to remain in the final version of the letter. It makes no sense to suggest, although Dr Borsani did, that the square brackets and the text were left in the letter to protect the defendant’s privacy. Had Dr Borsani had any active role in the drafting of the letter, even taking into account his own facility with English, he would have replaced the square brackets and instruction with other text; perhaps, simply with the word “drugs” or “medication”. The instruction to list drug dosages can only have come from someone else, and either Dr Borsani missed the instruction or did not understand what he was required to do. The instruction could not have come from the Spanish police. They would not have recorded that the defendant was being treated with “[list of drug dosages]”. They would either have recorded the medication precisely or would have recorded something generic, such as “medication”.

[103]Dr Borsani explained that he would not expect a doctor to be sympathetic to a patient. Yet the complaint letter criticises Drs Berman and von Brandt for not being sympathetic. That criticism cannot have come from the Spanish police. They are likely only to have recorded Dr Borsani’s complaints to them, and would not have recorded a lack of sympathy on the part of Drs Berman or von Brandt, because Dr Borsani would not have made the criticism. The criticism must have been suggested by someone else.

[104]Consistently in the complaint letter, where it mirrors Mr Thwaites’ email, references to the defendant are to “Tony”. However, in the final section of the letter, which, as I have said, does not also appear in Mr Thwaites’ complaint, references to the defendant are consistently to “the patient”. Such a change in description is very unlikely if Dr Borsani drafted the whole of the complaint letter.

[105]I also reject the criticisms Dr Borsani made of the claimants’ experts, which, I have concluded, are neither fair nor accurate.

[106]From my observation of Dr Fathers, I am doubtful that he would have said to Dr Borsani that he is famous or that Dr Borsani is a nobody. In any event, Dr Borsani demonstrated that he was not an accurate historian, when he conceded that his initial claim, that Dr Fathers did not speak with him after their initial introduction, was wrong and when he wrongly said, initially, that he had not told Dr Fathers that scans and records could not be accessed on a Saturday.

[107]I also reject the claim that Dr Berman was aggressive to the defendant, by implication for no medical reason, and that, in particular, he shouted at the defendant. I accept, as Dr Berman did, that he called the defendant’s name loudly, but I reject the claim that Dr Berman shouted or, to the extent he raised his voice, (impliedly) that he did so for no medical reason. Dr Berman was notably quietly, and evenly, spoken when he gave oral evidence. Also, Dr von Brandt, who was present in the examination room at the time, confirmed that Dr Berman did not shout. Dr von Brandt has no reason to give false evidence and every reason, as an independent professional and expert, to give truthful evidence. In any event, there was clearly a medical reason for Dr Berman raising his voice (as, Dr von Brandt explained, one might if a patient is hard of hearing), because the defendant did not engage with them.

[108]As demonstrated by his 29 June 2023 letter, the complaint letter and his unjustified criticisms of the claimants’ experts, it is likely that Dr Borsani pre-judged Drs Berman and von Brandt and, probably, by extension Dr Fathers, forming the view that they were going to act unprofessionally in their interactions with the defendant. This, in turn, is likely to have clouded Dr Borsani’s view of his own interactions with the other doctors (and caused him to misjudge their motives, there being no basis for concluding that any of them intended to harm the defendant), and is also likely to have made him, as he was, even more of an advocate (as, in his correspondence, he admitted he has been) for the defendant than he might otherwise have been, rather than an independent expert helping the court.

[109]I do not have any reason to reject the evidence of the claimants’ experts. I therefore accept their evidence. That this is the right decision is reinforced by the following matters.

[110]First, having given Dr Borsani’s evidence no weight, there is no evidence contradicting the claimants’ expert evidence.

[111]Secondly, the claimants’ experts gave their oral evidence moderately, acknowledging the limits of their respective expertise.

[112]Thirdly, Dr Fathers accurately recounted that Dr Borsani explained that he could not access the defendant’s scans or records on a Saturday.

[113]Fourthly, it is apparently common medical knowledge that, as Dr Fathers explained, there is no neurological condition which explains a patient momentarily resisting pressure being applied to their limbs and then allowing those limbs to give way. Dr Borsani said that that presentation would show someone is likely to be “faking” catatonia.

[114]Fifthly, it is notable that the defendant did not apparently become less and less responsive to Dr Fathers in the first 20 minutes of Dr Fathers’ examination of him. Yet, after a break, there was a step-change in the defendant’s presentation. That the defendant did not become progressively less responsive to Dr Fathers in the first 20 minutes of the examination, but did so after a break, supports Dr Fathers’ overall conclusion that the defendant does not have a physical impairment by reason of a neurological condition.

[115]Sixthly, consistently with the conclusions of the claimants’ experts, Dr Borsani’s report/note suggests that the defendant does not have a physical impairment which makes him medically unable to participate in a Part 71 examination. His report/note also does not express any opinion that any mental impairment the defendant may have makes him medically unable to participate in a Part 71 examination.

[116]I therefore conclude, on the second issue, as follows:a. The defendant is not medically unable to attend court for a Part 71 examination because of any physical impairment by reason of a neurological condition;

b. I am not satisfied that the defendant is medically unable to attend court for a Part 71 examination because of any mental impairment. The reason why my decision on the second matter is more qualified than the first is because, as Dr Berman explained, the defendant’s non-participation in the assessment of his mental health during the 7 July 2023 examination meant that Dr Berman and Dr von Brandt could not conclude, on balance, the extent to which the defendant has a mental impairment or the nature of any such impairment.

[117]I now turn to the first issue; namely, whether or not the defendant failed to submit to medical examination as ordered by Master Brightwell.

[118]On this issue (as on the third issue), I need to construe court orders. It is helpful therefore to set out now how court orders should be construed.

[119]On the proper construction of court orders, particularly those which have a penal effect, counsel referred me to Deutsche Bank AG v. Sebastian Holdings Inc

[2023] 4 WLR 76

, where Henshaw J explained as follows, at [56]-[62]:

“(C) Construction of the Suspended Committal Order (1) Principles As to the general approach when interpreting court orders, in Sans Souci Ltd v. VRL Services Ltd [2012] UKPC 6, Lord Sumption (giving the judgment of the Privy Council) said, at paras.13-16: “…the construction of a judicial order, like that of any other legal instrument, is a single coherent process. It depends on what the language of the order would convey, in the circumstances in which the court made it, so far as these circumstances were before the court and patent to the parties. The reasons for making the order which are given by the court in its judgment are an overt and authoritative statement of the circumstances which it regarded as relevant. They are therefore always admissible to construe the order. In particular, the interpretation of an order may be critically affected by knowing what the court considered to be the issue which its order was supposed to resolve. “It is generally unhelpful to look for an ‘ambiguity’, if by that is meant an expression capable of more than one meaning simply as a matter of language. True linguistic ambiguities are comparatively rare. The real issue is whether the meaning of the language is open to question. There are many reasons why it may be open to question, which are not limited to cases of ambiguity. … A strict construction must be applied to orders whose breach carries penal consequences. In JSC BTA Bank v. Ablyazov (No.10) [2015] UKSC 64; [2015] 1 WLR 4754, a case about the construction of a freezing order, Lord Clarke (with whom the other members of the court agreed) said, at para.19: “I further agree that orders of this kind are to be restrictively construed in accordance with Beatson LJ’s strict construction principle [in the court below], which he described in this way in para.37: ‘The third principle follows from the “fundamental requirement of an injunction directed to an individual that it shall be certain”: Z Ltd v. A-Z and AA-LL [1982] QB 558, 582 per Eveleigh LJ. It is that, because of the penal consequences of breaching a freezing order and the need of the defendant to know where he, she or it stands, such orders should be clear and unequivocal, and should be strictly construed…In Anglo Eastern Trust Ltd v. Kermanshahchi [2002] EWHC 1702 (Ch) Neuberger J stated: ‘A freezing order, which has been referred to as a nuclear weapon, should … be construed strictly’ because the court is ‘concerned with an order which has a potentially draconian effect on the commercial and economic freedom of an individual against whom no substantive judgment has yet been granted’. He added at para.66 that strict construction is also an aspect of the ‘great circumspection’ with which Lord Mustill, in Mercedes Benz AG v. Leiduck [1996] AC 284, 297, stated that the jurisdiction should be exercised. I agree. One of the reasons for this principle, as I see it, is the risk of oppression.”

Similarly, in S v. Wilkinson (Family Proceedings Final Order)

[2003] EWCA Civ 95

;

[2003] 1 WLR 1254

, a case about the interpretation of the rules applicable to appeals from suspended committal orders, Hale LJ (giving the judgment of the court), made clear that such orders are in substance orders for imprisonment, paras.55-57:

“55. There is no doubt that a suspended committal order is an order which commits a person to prison. It orders that the person concerned ‘be committed for contempt to prison’ for the period specified. On the other hand, it does not result in the immediate imprisonment of the person concerned. A further order of the court is required. Unlike an immediate committal order, the refusal of habeas corpus, or a secure accommodation order, the person concerned is not immediately deprived of his liberty. It could be said, therefore, that the policy of the exception does not require an automatic right of appeal without the delay involved in having first to seek the permission either of the trial or the appeal judge… “56. In other contexts, however, it has often been emphasised that a suspended sentence of imprisonment should always be regarded as a sentence of imprisonment. It should not, therefore, be imposed for an offence which is not serious enough to merit an immediate sentence. Nor should a suspended committal be for longer than the immediate term which would be imposed…The reasons for this are obvious. There may well come a time when the court has to consider whether or not the terms of the suspension have been broken. If they have been broken, the court will be concerned with whether the suspension should be lifted and the committal served…Although the court has a discretion whether or not to implement the committal, it will begin with a predisposition to do so once a breach of its terms has been proved, and it will not at that stage be concerned with whether the original committal order was correct… “57. Although a suspended committal does not immediately deprive the contemnor of his liberty, therefore, it hangs a sword of Damocles over his head which puts his liberty at much greater risk than did the order which he has been found to have breached. To the extent that there is any doubt about the meaning of the rules, it should be resolved in favour of the citizen whose liberty is thus put in jeopardy…”

Although Wilkinson concerned the interpretation of the rules, rather than of the suspended committal order itself, it underlines the penal nature of such orders. The penal consequences of non-compliance with a suspended committal order are at least as immediate as those for breach of a freezing order (probably more so, since the contempt itself has ex hypothesi already been established). It must follow, in my view, that a suspended committal order should be clear and unequivocal, and must be strictly construed.” “…the construction of a judicial order, like that of any other legal instrument, is a single coherent process. It depends on what the language of the order would convey, in the circumstances in which the court made it, so far as these circumstances were before the court and patent to the parties. The reasons for making the order which are given by the court in its judgment are an overt and authoritative statement of the circumstances which it regarded as relevant. They are therefore always admissible to construe the order. In particular, the interpretation of an order may be critically affected by knowing what the court considered to be the issue which its order was supposed to resolve. “It is generally unhelpful to look for an ‘ambiguity’, if by that is meant an expression capable of more than one meaning simply as a matter of language. True linguistic ambiguities are comparatively rare. The real issue is whether the meaning of the language is open to question. There are many reasons why it may be open to question, which are not limited to cases of ambiguity. … “I further agree that orders of this kind are to be restrictively construed in accordance with Beatson LJ’s strict construction principle [in the court below], which he described in this way in para.37:

‘The third principle follows from the “fundamental requirement of an injunction directed to an individual that it shall be certain”: Z Ltd v. A-Z and AA-LL [1982] QB 558, 582 per Eveleigh LJ. It is that, because of the penal consequences of breaching a freezing order and the need of the defendant to know where he, she or it stands, such orders should be clear and unequivocal, and should be strictly construed…In Anglo Eastern Trust Ltd v. Kermanshahchi [2002] EWHC 1702 (Ch) Neuberger J stated: ‘A freezing order, which has been referred to as a nuclear weapon, should … be construed strictly’ because the court is ‘concerned with an order which has a potentially draconian effect on the commercial and economic freedom of an individual against whom no substantive judgment has yet been granted’

. He added at para.66 that strict construction is also an aspect of the ‘great circumspection’ with which Lord Mustill, in Mercedes Benz AG v. Leiduck

[1996] AC 284

, 297, stated that the jurisdiction should be exercised. I agree. One of the reasons for this principle, as I see it, is the risk of oppression.” “55. There is no doubt that a suspended committal order is an order which commits a person to prison. It orders that the person concerned ‘be committed for contempt to prison’ for the period specified. On the other hand, it does not result in the immediate imprisonment of the person concerned. A further order of the court is required. Unlike an immediate committal order, the refusal of habeas corpus, or a secure accommodation order, the person concerned is not immediately deprived of his liberty. It could be said, therefore, that the policy of the exception does not require an automatic right of appeal without the delay involved in having first to seek the permission either of the trial or the appeal judge… “56. In other contexts, however, it has often been emphasised that a suspended sentence of imprisonment should always be regarded as a sentence of imprisonment. It should not, therefore, be imposed for an offence which is not serious enough to merit an immediate sentence. Nor should a suspended committal be for longer than the immediate term which would be imposed…The reasons for this are obvious. There may well come a time when the court has to consider whether or not the terms of the suspension have been broken. If they have been broken, the court will be concerned with whether the suspension should be lifted and the committal served…Although the court has a discretion whether or not to implement the committal, it will begin with a predisposition to do so once a breach of its terms has been proved, and it will not at that stage be concerned with whether the original committal order was correct… “57. Although a suspended committal does not immediately deprive the contemnor of his liberty, therefore, it hangs a sword of Damocles over his head which puts his liberty at much greater risk than did the order which he has been found to have breached. To the extent that there is any doubt about the meaning of the rules, it should be resolved in favour of the citizen whose liberty is thus put in jeopardy…”

[120]The context in which Master Brightwell made his order is important:a. Judgment had been entered against the defendant almost 4 years beforehand.

b. In the claim, the defendant had been found to have attempted to mislead the court and to have adopted at least one “ploy”.

c. The Part 71 order had been made about 18 months beforehand. Yet no Part 71 examination had taken place.

d. Mellor J had already found that the defendant had deliberately and intentionally not complied with the Part 71 order and was in contempt of court.

e. A second Part 71 examination, due to take place on 11 January 2022, did not take place because, only shortly beforehand, the defendant’s litigation capacity was called into question, although, after a delay of 11 months, and having not co-operated to allow the claimants to medically assess his capacity as ordered by the Deputy Master, the defendant conceded, within days of the trial as to his capacity, that he does have litigation capacity.

f. Similarly, shortly before a third Part 71 examination, the defendant claimed for the first time that he was suspected as suffering from Guillain-Barré syndrome and that that necessitated yet a further adjournment of the examination.

[121]Further:a. The purpose of the medical examinations ordered by the Master was so that the court could determine whether or not the defendant has a medical impairment which might inhibit his full participation in a Part 71 examination. Their purpose was not to diagnose the defendant for the purpose of treatment, or to treat him.

b. The Master’s unless order (which I have quoted), distinguishes between the requirement that the defendant attend the ordered medical appointments and that he submit to medical examination.

[122]I am satisfied that Master Brightwell had in mind, when he made his order, that there was a risk, at least, that the defendant may have no medical impairment which might inhibit his full participation in a Part 71 examination, and that he might be attempting to mislead the court in order to obstruct its examination of his means.

[123]In the circumstances, I am satisfied that, by his order, Master Brightwell ordered the defendant to perform the tests set for him by the claimants’ experts and to answer their questions, so far as he was medically able.

[124]In determining whether or not the defendant complied with what the Master ordered, I bear in mind, having attached no weight to Dr Borsani’s evidence and having accepted the opinion of the claimants’ experts, that there is no evidence that there was any medical reason to explain why the defendant might not fully participate in the medical examinations.

[125]The evidence of the claimants’ experts paints a vivid picture of the defendant having hardly participated in Dr Fathers’ examination and of having not participated at all in Dr Berman’s and Dr von Brandt’s examination. There is no medical reason for that. I can only, and do, conclude that the defendant chose not to perform the tests set for him by the claimants’ experts and chose too not to answer their questions even though, and to the extent, he was able to do so.

[126]It follows that I also conclude that the defendant failed to submit to examination by the claimants’ medical experts as ordered by Master Brightwell and so is barred from relying on medical evidence for the purpose of determining the second issue (which, as it happens, I have already determined). Discussion – has the defendant complied with Master Marsh’s order for the production of documents and what are the consequences if he has not?

[127]For much of the trial, I was very reluctant to find that a bench warrant should be issued against the defendant. I became more persuaded that I should not issue a bench warrant having heard Ms Read’s very well argued and presented closing submissions. However, I have been persuaded by Mr Miall’s impressive closing submissions that a bench warrant should be issued against the defendant. I need to explain why.

[128]By Master Marsh’s order, the defendant was ordered “to produce copies of the documents required by the Part 71 order”.

[129]As I have recorded, the Part 71 order contained the following provisions:a. The defendant “must produce at court all documents in his control which relate to his means of paying the amounts due under the judgments or orders”.

b. The defendant must also “produce those documents set out in [an] attached list”, including:

“Bank statements for all bank or building society accounts held by or for the Defendant for the last 2 years, whether legally or beneficially, in his sole name or in joint names with another person, and whether in this jurisdiction or any other. Tax returns and any prepared accounts of the Defendant for the last 10 years, whether filed in this jurisdiction or any other. … Copies of all statements for any other financial assets, including pensions, SIPPs, ISAs and other savings or investments held in the Defendant’s name, whether held solely or jointly with another person, or held on the Defendant’s behalf.” … c. The Part 71 order also contained the following standard information: “Documents in your control You must produce all documents which confirm the information required. If you do not have them in your possession, you must get them if you can. … If a list of additional documents is attached to this order, these too must be produced.”

It is unlikely that the court ever intended that the defendant would be in breach of the Part 71 order if he did not produce existing documents in any of the categories specified on the list attached to the Part 71 order which were not in his possession and which he could not get. In short, it is unlikely that the court intended to impose a more onerous obligation on the defendant in relation to the categories of documents in the list attached to the Part 71 order than to the generic category of documents referred to in the order itself. A breach of the Part 71 order created the risk that a suspended committal order would be made without a hearing, as happened in this case. It is appropriate, therefore, that the Part 71 order is construed restrictively so that a breach of it does not arise if the defendant had made efforts to obtain the documents not in his possession in the categories on the list attached to the order, but without success.

[130]Master Marsh’s order, on its face, required the defendant to comply with his document production obligations under the Part 71 order by 14 December 2022.

[131]The defendant made a witness statement on 14 December 2022. He had instructed solicitors, Rainer Hughes, by that time.

[132]The defendant does not claim, in his witness statement, that, in preparing to comply with his document production obligations under the Part 71 order by 14 December 2022, he had made any effort (including authorising his solicitors) to obtain any documents which existed in any of the categories specified in the Part 71 order which were not then in his possession.

[133]So far as bank statements were concerned, he produced:a. A single statement for a bank account held in a UAE bank for the period 1 November 2022 to 30 November 2022 for an account ending 5508. The statement showed a nil balance, that the opening balance for the period had been brought forward from an earlier period and that there were no transactions in the period.

b. A single statement for a bank account held in the same UAE bank for the period 1 November 2022 to 30 November 2022 for an account ending 5504. The statement showed a nil balance, that the opening balance for the period had been brought forward from an earlier period and that there were no transactions in the period. At the time, the defendant was resident in Spain.

[134]So far as tax returns and prepared accounts were concerned, he said in the witness statement:

“I was in a longstanding dispute with HMRC and attach a copy of the judgment from the Court of Appeal dated 31 January 2019 (TMJ p. 30 to 52). After this decision the matter was settled with HMRC. I am willing to sign a consent letter to the Claimants solicitors giving them authority to obtain all of these details directly from HMRC as I no longer have them in my possession or control.”

[135]So far as pensions were concerned, he said:

“I have a pension from the London Borough of Southwark which is paid directly to my former wife as part of our divorce settlement.”

The defendant did not produce any document in relation to this pension, although, after 14 December 2022, he produced a single bank statement in his wife’s name showing her receipt of a pension payment on 20 May 2022 (that is, before Master Marsh’s order).

[136]I am satisfied to the criminal standard of proof (which counsel agree I need to be, before a bench warrant may be issued in this case), that is, I am sure, that the defendant did not comply with his document production obligations under the Part 71 order by 14 December 2022.

[137]I am sure that the defendant’s two identified bank accounts had been open in the two years before November 2022 as I have explained, but he produced no statements for those accounts for any period before November 2022.

[138]Given the history of the court’s attempts to carry out a Part 71 examination, and bearing in mind the conclusions that I have already reached (which together lead me to conclude, so that I am sure, that the defendant has obstructed those attempts by the court) and that the defendant does not suggest that he made any effort to obtain any documents, I am also sure that the defendant did not make any effort to obtain any documents, including to comply with his document production obligations in relation to bank statements, by 14 December 2022.

[139]The proper inference to draw from the defendant’s witness statement is that there were “tax returns [and/or] prepared accounts…for [at least one of] the last 10 years”. Had there not been any such documents at all, I am sure the defendant would have said as much in his witness statement, because he would have thought that saying as much would help him, which is how he approached Dr Fathers’ examination, at which, as Dr Fathers noted, the only non-monosyllabic answer the defendant gave to any question Dr Fathers asked after the break was about his mental health. As I have also said, I am sure that the defendant did not make any effort to obtain any documents, including any tax returns or prepared accounts. Further, there is apparently no dispute that the defendant could have obtained copy tax records from HMRC. I am sure, therefore, that the defendant (who produced no tax records) did not comply with his document production obligations in relation to tax returns or prepared accounts by 14 December 2022.

[140]Because of the conclusions I have already reached about the defendant’s default in his document production obligations by 14 December 2022, I do not need to determine whether he also breached them in relation to other categories of documents, such as the LB of Southwark pension.

[141]Does the defendant’s default mean, however, that the defendant has breached Master Marsh’s order? Ms Read argued that it does not.

[142]CPR 71.2(6) provides that:

“A person served with an order issued under this rule must - (a) attend court at the time and place specified in the order; (b) when he does so, produce at court documents in his control which are described in the order; and (c) answer on oath such questions as the court may require.”

This CPR provision shows that the requirement to produce documents under CPR Part 71 is linked, at least, to the Part 71 examination itself. Indeed, in a standard Part 71 order, the production of documents is inextricably linked to the examination itself because the documents to be produced are to be produced at the hearing. (b) when he does so, produce at court documents in his control which are described in the order; and

[143]The Part 71 order provided, in terms, for documents to be produced at the Part 71 examination, even though it was to be conducted by video.

[144]Deputy Master Dray’s 20 December 2021 order also likely fixed the time for the defendant to produce documents by reference to the date fixed for the Part 71 examination.

[145]Is it therefore the case that, on the proper construction of Master Marsh’s order, the defendant only had to produce documents within a matter of weeks of a Part 71 examination taking place and, because one has not yet taken place, that the defendant has not breached Master Marsh’s order?

[146]Although initially attracted to the argument that the defendant has not breached Master Marsh’s order, I have come to the conclusion that, on the proper construction of the order, he has, for four reasons:a. By the time of Master Marsh’s order, a considerable period of time had elapsed since the making of the Part 71 order when the defendant had not complied with his document production obligations.

b. Although previous orders had fixed the date for a Part 71 examination, Master Marsh’s order did not. It is possible, because of listing limitations, that, in accordance with his order, the Part 71 examination would take place a considerable period of time after 14 December 2022.

c. By his order, Master Marsh expressed that the suspended committal order applied not only to the Part 71 examination but also, separately, to his order for the defendant to produce documents.

d. Most importantly, the words of Master Marsh’s order are clear. He did not order that the defendant produce documents a specified number of days before the Part 71 examination. He ordered that the defendant produce documents by 14 December 2022.

[147]In the circumstances, in partial determination of issue 3, I am sure that the defendant has failed to comply with para.3 of Master Marsh’s order.

[148]The next issue I have to consider is whether, by failing to comply with para.3 of Master Marsh’s order, the defendant has failed to comply with the terms on which Mellor J suspended the defendant’s committal to prison when he made the suspended committal order.

[149]As I have recorded, the suspended committal order provides that:

“1. This order is suspended so long as Tony Michael Jimenez attends a hearing before Deputy Master Dray on 11th January 2022 at 10:30 am and complies with the Part 71 Order, the hearing to be conducted as Deputy Master Dray may direct, including, if necessary, as a remote hearing and/or with provision for Tony Michael Jimenez to produce the documents required by the Part 71 Order. 2. If Tony Michael Jimenez does not comply with these terms, a warrant of arrest shall be issued and Tony Michael Jimenez shall, when arrested, be brought before a Judge to consider whether the committal order should be discharged.”

[150]By a recital to the order, “the Part 71 order” was defined as the order made by Deputy Master Rhys on 21 September 2021. However, when Mellor J suspended the defendant’s committal to prison on condition that the defendant complies with the Part 71 order, he cannot have meant the order as made by Deputy Master Rhys, because, as the suspended committal order recites, the date of the Part 71 examination had changed from the date in the Deputy Master’s order and because, in any event, the defendant could not comply with that part of the Part 71 order which required him to participate in a hearing the date of which had already passed and in respect of which the defendant’s absence was found, by Mellor J, to be a contempt of court.

[151]Nor is it completely clear what Mellor J meant when he ordered “the hearing to be conducted as Deputy Master Dray may direct, including, if necessary,…with provision for Tony Michael Jimenez to produce the documents required by the Part 71 Order”, or whether compliance with any later order made by Deputy Master Dray about the production of documents was a condition on which the defendant’s committal to prison was suspended.

[152]There was very good practical sense behind the form of para.1 of the suspended committal order, which was made at the height of the covid-19 pandemic, but, with hindsight, it is unfortunate that that paragraph is not completely clear, particularly because, by analogy with what the court has explained with reference to injunctions (see what Eveleigh LJ said in Z Ltd v. A-Z and AA-LL, quoted by Henshaw J in Deutsche Bank above), the terms of a suspended committal order should be certain.

[153]Because the suspended committal order is a penal order, it must be construed restrictively.

[154]Nevertheless, I have come to the conclusion that, on the proper construction of the suspended committal order, it has been a condition of the suspension of the defendant’s committal to prison, that the defendant complies with the document production requirements of the Part 71 order, as varied from time to time, and that, because Master Marsh’s order so far as it relates to document production is a variation of the document production requirements of the Part 71 order, the defendant has breached para.1 of the suspended committal order, in particular, a condition on which his committal to prison was suspended, by not complying with the document production requirements of Master Marsh’s order.

[155]As I have explained, when Mellor J made it a condition of the suspension of the defendant’s committal to prison that he complies with the Part 71 order, the judge cannot have meant the order as approved by Deputy Master Rhys (without any amendment or variation). Mellor J clearly had in mind that the order had already effectively been amended and he appreciated that it might be varied in the future as to the format of the hearing and the method by which the defendant was to provide documents (because he expressly made provision for Deputy Master Dray to determine those two matters). By para.2 of the suspended committal order, Mellor J provided that a bench warrant should be issued if the defendant “does not comply with these terms”, which I am satisfied, from the language Mellor J used, is a reference to the whole of para.1, including the provision permitting Deputy Master Dray to determine the method of document production. A bench warrant for a failure by the defendant to comply with any such order by the Deputy Master can only have been appropriate if suspension of the defendant’s committal to prison was conditional on compliance with the Deputy Master’s order. Further, a purpose of the suspended committal order was to compel the defendant’s belated compliance with the Part 71 examination procedure which requires a judgment debtor to provide documents about their finances. The suspended committal order is likely to have been largely ineffective in that respect if there was a remote Part 71 examination and the defendant was not required to provide documents before the examination itself. It is for all these reasons that I have come to the conclusion that, on the proper construction of the suspended committal order, it has been a condition of the suspension of the defendant’s committal to prison that the defendant complies with the document production requirements of the Part 71 order as varied from time to time, so that, in answer to the remaining part of the third issue, I am sure that the defendant has breached para.1 of the suspended committal order.

[156]The suspended committal order has not been set aside or successfully appealed. There has not been any application to have the order set aside (at least, yet). Nor has an application for permission to appeal been made. The defendant has therefore always been bound by the order and has breached it, as I have said.

[157]Nevertheless, as I have also said, and as has been apparent to the parties throughout the trial, I have been troubled about whether the suspended committal order should have been made in the terms it was. I have been troubled in particular that the terms on which the defendant’s committal to prison was suspended were not set only by Mellor J in the order itself but were permitted to be determined, on the order’s proper construction, by a different judge at a later date, because, as I have found, the defendant’s committal to prison was suspended on condition that, amongst other matters, he complied with any later variation of the document production requirements in the Part 71 order. I ask rhetorically:a. How could Mellor J fully weigh up whether or not it was appropriate to suspend the defendant’s committal to prison if he was not certain, because he did not know, about the terms of any later order about document production that might be made?

b. How could the defendant be certain, at any given time, about whether or not he might successfully apply to purge his contempt, if his document production obligations could be varied from time to time? On the former question, it may be argued in response, with force, that Mellor J could proceed on the basis that any later order would be compliant with the overriding objective, and so just. On the latter question, it may be argued that, whenever the defendant made an application to purge his contempt, if he had complied with the document production obligations which applied at the time he did produce documents, he could rely on that compliance in support of his purge application. It can also be pointed out that, in fact, the defendant has never complied with his document production obligations as they have applied from time to time in any event. Having said all that, I remain troubled about the terms of the suspended committal order.

[158]Despite their best efforts, counsel could not find any authority on whether it is appropriate for a judge to suspend a committal order on terms determined by another judge. Mr Miall pointed out that this happens in practice. He referred me, as an example, to a decision of Edwin Johnson J, Dattani v. Rasheed

[2022] EWHC 3671 (Ch)

, where the judge recorded that he had made it a condition of the suspension of the contemnor’s committal that they comply with all later orders made in the case. I accept as well that a plain reading of the relevant CPR provisions support a conclusion that a judge can act in this way. CPR 71.8(3) provides that, if a committal order is made:

“the judge will direct that - (a) the order shall be suspended, provided that the person - (i) attends court at a time and place specified in the order; and (ii) complies with all the terms of that order and the original order…”

This provision does not limit the conditions which a judge can impose. Further, the analogous provision in CPR Part 81 (CPR 81.9) provides:

“Execution of an order of committal requires issue of a warrant of committal. An order of committal and a warrant of committal have immediate effect unless and to the extent that the court decides to suspend execution of the order or warrant.”

Again, a judge is not apparently limited as to the terms of a suspension of a committal order. (ii) complies with all the terms of that order and the original order…” “Execution of an order of committal requires issue of a warrant of committal. An order of committal and a warrant of committal have immediate effect unless and to the extent that the court decides to suspend execution of the order or warrant.”

[159]Ultimately, I do not need to reach a final conclusion about whether or not the suspended committal order should have been in the terms it was. As I have said, the suspended committal order continues to be binding and, although I have taken into account my concern about the terms of the order when I have decided how to exercise my discretion to issue a bench warrant, as I will explain, the counter-balancing factors in favour of issuing a bench warrant outweigh this concern.

[160]I turn then to the final matter I have to determine; that is, whether to issue a bench warrant against the defendant.

[161]I am satisfied that I have a discretion to issue a bench warrant, by analogy with the well-established principle that the court retains a discretion as to the enforcement of a suspended committal order which has been breached (see, for example, Villiers v. Villiers

[1994] 1 WLR 493

at 498D-F). Mr Miall suggested that I did not have a discretion, but instead am compelled to issue a bench warrant. He pointed out that CPR 71.8 says that a suspended committal order will provide that “if the [judgment debtor] fails to comply with any term on which the order is suspended, they shall be brought before a judge to consider whether the order should be discharged.” (emphasis added). Para.2 of the suspended committal order is also in mandatory terms. I disagree with Mr Miall. That the CPR sets out what an order will provide does not mean that a judge is bound to exercise a power that judge has; that is, to issue a bench warrant. Nor, adopting a restrictive construction of the suspended committal order, do I think that Mellor J intended to go any further than that.

[162]As I have said, when deciding whether or not to exercise my discretion to issue a bench warrant, I have had in mind, and weighed in the balance, that the terms of the suspended committal order may, at least, have not been appropriate. Most favourably to the defendant, I have given this matter significant weight.

[163]I have also weighed in the balance that the Part 71 examination has not yet taken place, that, when he made the Part 71 order, the Deputy Master had in mind that the defendant would produce documents at the examination and that Master Marsh is likely to have expected that the documents he ordered to be produced would assist with the examination.

[164]Nevertheless, the following counter-balancing factors more than outweigh these matters, so that I have concluded that it is appropriate to issue a bench warrant.

[165]The suspended committal order was made over 3 years ago. The defendant has been bound by it since then.

[166]On the proper construction of the order, the defendant’s committal to prison has always been suspended on condition that he complies with the document production requirements of the Part 71 order as varied from time to time. The defendant ought to have appreciated that, particularly after he instructed solicitors (which he did before he was required to comply with Master Marsh’s order).

[167]He has not applied to have the suspended committal order set aside. Had he had any concern about the appropriateness of the terms of the suspended committal order, he could have made a set aside application; particularly after he had instructed solicitors. It is reasonable to conclude that the defendant has not been concerned about the appropriateness of the terms of the suspended committal order, which may be because he may not have cared about it.

[168]It is important that court orders are complied with. It is particularly important that penal orders, such as the suspended committal order, are complied with. The administration of justice may be undermined if parties think that they can ignore with impunity court orders, and penal orders in particular.

[169]If the defendant belatedly produces the documents specified in the Part 71 order or comprehensively evidences significant efforts to obtain the documents specified, it may be - I put it no higher than that - that the court will discharge the suspended committal order following the execution of the bench warrant.

[170]If the defendant now believes that the terms of the suspended committal order were not appropriate, he may be able to apply to have the order set aside, or varied. Again, I put it no higher than that.

[171]If the defendant now actively co-operates with the claimants to provide them with full visibility about his finances, he may be able to apply successfully to purge his contempt even before the bench warrant I will issue has been executed. I put this matter too no higher than that.

[172]As matters stand, however, the defendant has been subject to document production obligations (under Master Marsh’s order), compliance with which has been a condition for the continued suspension of his committal to prison (under the suspended committal order), but the defendant has not complied with his obligations and he has made no, or hardly any, effort, even belatedly, to comply (contrary to Ms Read’s submission), though he has had the support of lawyers and his family, when there is apparently no good reason for his default on the material before me and in the light of the conclusions I have already reached. In particular, because I can attach no weight to Dr Borsani’s evidence and in the light of the conclusions I have reached about the defendant’s health, the defendant’s health is not a good reason for his default in compliance with his document production obligations.

[173]It has been particularly important that the defendant complies with his document production obligations in this case because the claimants’ judgments remain unsatisfied after 6 years and because, taking into account the history of the claimants’ enforcement efforts, I am not convinced that the defendant will ever submit to a Part 71 examination voluntarily.

[174]Further, whilst Ms Read was at pains to remind me that the defendant, on his case at least, is very unwell, bearing in mind the conclusions I have already reached in relation to the medical evidence, if the defendant is well enough to, and does, return to this jurisdiction so that the bench warrant can be executed, I am not satisfied that there is any medical reason why a bench warrant should not be issued.

Disposal

[175]I have determined the three issues ordered to be tried pursuant to Rajah J’s order as follows:a. The defendant did fail to submit to examination by the claimants’ medical experts within the proper meaning of para.2 of the Master Brightwell’s order, with the consequence that the defendant is barred from relying on medical evidence for the purposes of the determination of the next issue.

b. The defendant is not medically unable to attend court for examination under CPR Part 71 by reason of any physical impairment by reason of a neurological condition, and I am not satisfied that the defendant is medically unable to attend court for examination under CPR Part 71 by reason of mental impairment.

c. The defendant has failed to comply with para.3 of Master Marsh’s order, and thereby breached para.1 of the suspended committal order.

[176]For the reasons I have given, I will also issue a bench warrant against the defendant.

[177]I will hear further from counsel on all costs and consequential matters.

Cited in 1 later judgment

Lars Windhorst v ADS Securities LLC 2026