Fitrite Fencing and Decking Limited v John Ross & Anor [2026] EWHC 708 (Ch)

Case No BL-2024-LDS-000060IN THE HIGH COURT OF JUSTICEVenue BUSINESS AND PROPERTY COURTS IN LEEDSBUSINESS LIST (ChD)[2026] EWHC 708 (Ch)Venue The Business and Property Courts in LeedsWestgate House6 Grace StreetVenue LeedsLS1 2RP
Before
Her Honour Judge Kelly sitting as a Judge of the High Court
Between
FITRITE FENCING AND DECKING LIMITEDClaimantJOHN ROSSDefendantsSHARON WRIGHTDefendantMs Jennifer Meech (instructed by Sydney Mitchell LLP) for ClaimantThe Defendants appeared in person for in personHearing Hearing date: 5 March 2025Date last submissions filed: 28 May 2025Date handed down: 24 March 2026
APPROVED JUDGMENTDate 2026-03-24
[1]This judgment follows the hearing of three applications made by the Defendants. The litigation concerns the ongoing dispute between the parties which concerns alleged breaches of fiduciary and other duties owed by the Defendants who were both previously directors of the Claimant. The Defendants were each made the subject of an injunction in December 2023.[2]During the hearing, I had the benefit of hearing from Ms Meech of counsel for the Claimant and also from the Defendants who appeared in person.

Background

[3]Until 7 April 2023, the Defendants were both directors of the Claimant. The First Defendant (“Mr Ross”) was not a director between 19 June 2019 and 31 August 2019 following being made bankrupt on 10 June 2019. The Second Defendant (“Mrs Wright”) was also a director of Fitrite East Coast limited (“FEC”) and she owned 80% of the shares in FEC.[4]On 4 October 2018, the Claimant purchased shares in FEC (“the FEC purchase agreement”) from Mrs Wright and a Mr Paul Allott (“Mr Allott”) who owned the remaining 20% of the shares in FEC.[5]On or around 4 October 2018, Mrs Wright and Mr Allott also entered into a subordination deed (“the subordination deed”) with the Claimant. The subordination deed provided that the deferred payment sums set out at clause 3of the FEC purchase agreement would, even if otherwise payable, rank behind sums due from the Claimant to Praesideian Capital Lucco 2 S.A.R.L. (“PLC2”).[6]The Claimant asserts that after the FEC purchase agreement and the subordination deed, Mr Ross (in his capacity as director of the Claimant) made a number of transactions with property of FEC which were not permitted. The transactions were set out in the Claimant’s skeleton argument as follows (I have kept the original abbreviations):(1) paid or arranged for the payment of £1,091,771 from C to D2 and Mr Allott which (by virtue of the conditions in the FEC purchase agreement and/or the subordination deed) was not due;(2) paid or arranged for payment by C of monies towards the purchase of land at Moor Monkton, York, YO26 8JA (“the York property”) registered in the name of Mrs Wright;(3) used monies from the sale of the York Property (together with other land) to purchase land at Pale Close, Sandpit Lane, Alkborough, Scunthorpe (“the Scunthorpe property”) which was registered in the name of Mrs Wright;(4) paid or arranged for the payment by the Claimant of £120,237.11 for materials and labour used to build a new property at the Scunthorpe Property which was marketed in 2023 (apparently unfinished) for £2,500,000;(5) paid or arranged for the payment by the Claimant of £193,289 towards Capital on Tap for a credit card used by Mr Ross for unknown purposes;(6) paid or arranged for the payment by the Claimant of various other invoices for services which did not benefit the Claimant and/or which did benefit the Defendants.[7]In addition, the Claimant asserts that Mrs Wright, as director of the Claimant at the relevant time, caused or allowed the payments set out in paragraph 6above and in doing so, breached her fiduciary duties to the Claimant which caused loss to the Claimant.[8]In addition, the Claimant also claims that wrongful payments made towards the York property and the acquired building materials for the Scunthorpe property mean that the Claimant has a beneficial interest in the Scunthorpe property.[9]On 5 May 2023, each Defendant entered into a settlement agreement with the Claimant. Relevant details of the agreements with each Defendant are set out in the chronology below. The settlement agreement with Mrs Wright contained a clause absent from the settlement agreement with Mr Ross. Clause 8.6 provided a release for Mrs Wright in respect of “any other claim founded on facts already known to the Company or any Affiliate”.[10]The Claimant asserts that the various payments set out at paragraph 6above were only discovered after the Claimant entered into the settlement agreement with Mrs Wright. As such, the Claimant claims that the payments were not covered by the settlement agreement with Mrs Wright.[11]Once the allegedly wrongful payments had been identified, in December 2023 the Claimant applied for, and was granted, a freezing order against Mr Ross and a proprietary injunction in relation to the Scunthorpe property against Mrs Wright.[12]The Defendants also rely upon the settlement agreements with the Claimant. The Defendants each assert that they each entered into a settlement agreement with the Claimant following the irretrievable breakdown in the relationship between the Defendants and Mr Jason Drattell. Mr Drattell is described in the defences as being “the ultimate controller of the Claimant” because he is the “President of Praesidian capital, a Director of the claimant and its Controller”. The Defendants say that the settlement agreements were intended to be and were made on the basis of a “walk away”, with no claims being made either way between the Claimant and Mrs Wright after the agreements were made.[13]The Defendants assert that there were various subsequent agreements in any event with PCL2 where the subordination deed was varied. In addition, the Defendants assert that the subordination deed did not prevent deferred consideration payments being made under the FEC purchase agreement.[14]In addition, they assert that all the allegedly wrongful payments made by Mr Ross (when he was still at the Claimant) were either for the benefit of the Claimant, offset against deferred consideration owed to Mrs Wright or offset against the director's loan account of Mr Ross. Further, they assert that the Claimant was fully aware of all material facts of the payments before entering into the settlement agreements.[15]On 29 October 2024, the Defendants applied to the court (“the October 2024 application”) for an[16]At the first hearing of the October 2024 application, it became clear that the Defendants wished to make further applications and the judge gave permission for a further application to be made.Directions were given in respect of the further application, including the date by which any further evidence must be filed by the Defendants.[17]On 4 December 2024, the Defendants made a further application (“the December 2024 application”):(1) to strike out the particulars of claim against Mrs Wright or alternatively summary judgment for her on the basis that the claim against her had been settled by a settlement agreement dated 5 May 2023 and accordingly had no prospect of success; and(2) to discharge the injunction order made against the Defendants, or in the alternative an order requiring the Claimant to fortify its cross undertaking in damages by providing adequate security.[18]On 26 February 2025, the Defendants made an application to rely upon further witness statements not served in accordance with the directions given for the December application (“the February 2025 application”). At the start of the hearing, I gave permission for the Defendants to rely upon the additional witness statements filed.[19]Further evidence and correspondence was filed by both parties after the hearing. I have admitted all of the evidence and relevant correspondence (commenting on the application or the evidence) filed after the hearing for the purpose of considering the applications including the 13th and 14th witness statements of Mr Ross and the witness statement of Mr Dede dated 19 March 2025. More detail is set out in the chronology.[20]The following chronology is of assistance: 04.10.2018 The Claimant buys shares in FEC from the Mrs Wright and Mr Allott. The FEC purchase agreement at clause 3 provided for the following payments by the Claimant:(a) £600,000 immediately;(b) £600,000 12 months after completion provided that the EBITDA (earnings before interest, taxes, depreciation, and amortization as defined in the agreement) was at least £1,000,000 within that period;(c) £800,000 24 months after completion if a Deferred Statement (as therein defined) had been agreed. Mrs Wright and Mr Allott also enter into the subordination deed with the Claimant which provided that the sums payable at 12 and 24 months would (even if otherwise payable) rank behind sums due from C to PCL2. 05.05.2023 The Claimant enters into a settlement agreement with Mr Ross and separately with Mrs Wright. The settlement agreement with Mrs Wright alone includes the following clause:
“8.6 The Company, on behalf of itself and each Affiliate, hereby releases the Employee from all and any claims which it or any of them has or might have against the Employee in respect of any consideration paid to the Employee for her shares in Fitrite East Coast Limited (including any claim to claw back any such payment), or any other claim founded on facts already known to the Company or any Affiliate at the date of this Agreement, and agrees not to sue or commence any proceedings against the Employee in respect of any such claim. For the avoidance of doubt, nothing in this clause 8.6 shall act as a waiver of or prevent the Company or any Affiliate from pursuing a claim to enforce the terms of (or in respect of any breach by the Employee of) this Agreement, any provisions of the Employment Contract expressed to apply or capable of applying following the Termination Date (as amended by the terms of this Agreement), the terms of the Shareholder’s Agreement and/or the terms of any other Agreement to which (notwithstanding this Agreement and the termination of the Employee's employment with the company) the Employee remains a party and to which the Company and/or any Affiliate is also a party. The Company shall use its reasonable endeavours to procure that each of its Affiliates will comply with the terms of this clause 8.6 as if it were a party to this Agreement providing the release to the Employee”
(emphasis added). 14.12.2023 The Claimant issues an application for injunctions against both Defendants in the Business List of the Chancery Division in London. The Claimant sought a freezing injunction against Mr Ross and a proprietary injunction against Mrs Wright. The application is supported by the following affidavits: (1) Mr David Boydell dated 14 December 2023; (2) Mr Serkan Dede dated 14 December 2023; and (3) Mr Allott dated 14 December 2023. 15.12.2023 Roth J heard the application without notice and made an order adjourning the application to be heard on notice on 21 December 2023. The Claimant gave an undertaking to provide a full note of the hearing and the evidence in support. 20.12.2023 The Claimant filed a witness statement dated 20 December 2023 by Mr Ian Sheppard, solicitor for the Claimant. Mr Ross filed witness statements dated: (1) 20 December 2023 (1st witness statement); (2) 21 December 2023(2nd witness statement); Mrs Wright filed a witness statement dated 20 December 2023(1st witness statement). 21.12.2023 The Claimant filed a further witness statement dated 21 December 2023 by Mr Ian Sheppard. 21.12.2023 The Claimant’s application was heard by Mr. James Pickering KC sitting as a Deputy High Court Judge. The Claimant and the Defendants were represented by counsel at the hearing. The Judge made: (1) a freezing injunction against Mr Ross in respect of assets in England and Wales up to the value of £357,482.10, which injunction specifically included three different bank accounts and any interest which Mr Ross had in the Scunthorpe property; and (2) a proprietary injunction against Mrs Wright in relation to the Scunthorpe property. 12.01.2024 Mr Ross files an acknowledgement of service January 2024 indicating an intention to defend the claim and a notice dated 9 January 2024 showing that he is now acting in person. 16.01.2024 Particulars of claim. 29.01.2024 Mrs Wright files a notice dated 25 January 2024 stating that she is now acting in person. 02.02.2024 The Defendants apply for an order that the Claimant actively engage with the process of selling of the Scunthorpe property. 07.02.2024 2nd witness statement of Mrs Wright. 08.03.24 3rd witness statement of Mr Ross. 10.03.2024 3rd witness statement of Mrs Wright. 12.03.2024 4th witness statement of Mr Ross. 14.03.2024 Mr. James Pickering KC sitting as a Deputy High Court Judge dismissed the Defendants’ application. 13.08.2024 Amended Defence of Mr Ross and Amended Defence of Mrs Wright. 29.10.2024 The Defendants applied to the court (“the October application”) for an[21]Happily, there is no real dispute about the legal principles which apply on the facts of this case.

The October 2024 application

[22]The Defendants’ application to set aside the interim injunction order made against Mrs Wright on 21 December 2023 engages CPR 3.1(7) which provides:
“A power of the court under these Rules to make an order includes a power to vary or revoke the order.”
[23]In Tibbles v SIG plc [2012] 1 WLR 2591, having considered the authorities dealing with when an order may be varied or revoked, Rix LJ stated at paragraph 39(ii) of the judgment:
“(ii) The cases all warn against an attempt at an exhaustive definition of the circumstances in which a principled exercise of the discretion may arise. Subject to that, however, the jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be appropriately exercised, namely normally only (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated.”
[24]The second part of the Defendants’ October 2024 application concerns the admission of audio recordings. CPR 31 deals with the disclosure of documents which includes audio recordings.[25]The Claimant suggests that as these recordings would be a document covered by the disclosure obligations pursuant to CPR 31, the audio recordings will be disclosable when that stage of the litigation is reached. Alternatively, if they are “key documents”, they should already have been provided in the initial disclosure exercise pursuant to CPR PD57AD at paragraph 5.1

The December 2024 application

[26]In respect of strike out, CPR 3.4(2) provides:
“(2) The court may strike out a statement of case if it appears to the court— (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order.” (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order.”
[27]In respect of summary judgment, CPR 24.3 provides:
“The court may give summary judgment against a Claimant or Defendant on the whole of a claim or on an issue if— (a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.” (a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
[28]The legal tests for strike out and summary judgment are similar (see for example Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339). The tests are summarised as follows:(1) There is a considerable degree of overlap between strike out and summary judgment. Both allow the court to dispose of claims which are obviously without merits or pursued in such a way as to obstruct the just disposal of a claim in a way which does not accord with the Overriding Objective.(2) Striking out a claim is a draconian remedy and one which is seen as a last resort.(3) Strike out is generally appropriate if the statement of case raises an unwinnable case and the continuance of proceedings would waste resources on both sides.(4) For summary judgment, the party responding must show a realistic as opposed to fanciful prospect of success. The claim must have some degree of conviction and be more than merely arguable.(5) The court must not conduct a mini trial but does not have to take a party’s case at face value. The court must take into account both the evidence actually placed before it and also evidence which can reasonably be expected to be available at trial. The court should hesitate to make a final decision without trial if reasonable grounds exist for believing that a full investigation into the facts would add to or alter the evidence available to the trial judge. The court is entitled to reject implausible evidence or that which is not supported by contemporaneous documents. Summary judgment may be given if, on the party’s own factual case, they would not be entitled to the remedy sought.[29]In submissions, Mr Ross made passing reference to Stack v Dowden [2007] 2 AC 432 in relation to a proprietary interest argument. In addition, the Defendants also rely on: (1) Three Rivers DC v Bank of England (No 3) [2001] UKHL 16 – Lord Hope at para. 95:
"The criterion which the judge has to apply under CPR Part 24 is not one of probability; it is absence of reality." (2) Johnson v Gore Wood & Co [2001] UKHL 65 – Lord Bingham at para. 31: "
The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied ... that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.”[30]In respect arguments about the Claimant’s knowledge, the Claimant relies upon two cases when considering when the knowledge of a director or directors becomes the knowledge of the company.[31]Lord Neuberger summarised attribution of knowledge to a company in Bilta (UK) Ltd v Nazir (No 2) [2016] AC 1, at paragraph 7: “Where a company has been the victim of wrongdoing by its directors, or of which its directors had notice, then the wrongdoing, or knowledge, of the directors cannot be attributed to the company as a defence to a claim brought against the directors by the company’s liquidator, in the name of the company and/or on behalf of its creditors, for the loss suffered by the company as a result of the wrongdoing, even where the directors were the only directors and shareholders of the company, and even though the wrongdoing or knowledge of the directors may be attributed to the company in many other types of proceedings.” directors had notice, then the wrongdoing, or knowledge, of the directors cannot be

company’s liquidator, in the name of the company and/or on behalf of its creditors, for

[32]InMeridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500, Lord Hoffman considered the knowledge requirement at page 507F:
“This is always a matter of interpretation: given that it is intended to apply to a company, how is it intended to apply? Whose act (or knowledge or state of mind) was for this purpose intended to count as the act etc of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy.” language of the rule (if it is a statute) and its content and policy.”
[33]That dictum of Lord Hoffman was approved by all the Supreme Court Justices in Bilta. In addition, Lord Toulson and Lord Hodge at paragraph 191 of the judgment relied further on Meridian:
“The relevance of the context in which the question is asked – “Is X’s conduct or state of mind to be treated as the conduct or state of mind of the company for the purpose in hand? - is not limited to Lord Hoffmann’s third category. The legal context, i.e. the nature and subject matter of the relevant rule and duty, is always relevant to that question. In Bowstead & Reynolds on Agency, 20th ed (2014) Professor Peter Watts and Professor Francis Reynolds stated (at para 8-213): “Before imputation occurs, there needs to be some purpose for deeming the principal to know what the agent knows. In the 19th edition the learned editors made the same point in the same paragraph thus: The rules of imputation do not exist in a state of nature, such that some reason has to be found to disapply them. Whether knowledge is imputed in law turns on the question to be addressed.”
We agree; an analysis of the relevant case law supports that view in relation to each category of rules of attribution.”[34]The test for fortification of a cross undertaking is set out in Energy Venture Partners Ltd v Malabu Oil and Gas Ltd (CA) [2015] 1 WLR 2309 at paragraph 13:
“…three requirements which a Defendant seeking fortification must in such circumstances satisfy. Those requirements are, first, that the court has made an intelligent estimate of the likely amount of loss which might result to a Defendant by reason of the injunction; secondly, that the applicant for fortification has shown a sufficient level of risk of loss to require fortification; and, thirdly, that the contemplated loss would be caused by the grant of the injunction.”
[35]The Defendants rely on: (1) Energy Venture Partners Ltd v Malabu Oil and Gas Ltd [2014] EWCA Civ 1295 – Tomlinson LJ at para. 45:
"Where an injunction is granted, and the financial stability of the applicant is in doubt, fortification of the cross-undertaking in damages should ordinarily be ordered." (2) Dadourian Group v Simms [2006] EWCA Civ 399 – Arden LJ at para. 23: "
The purpose of fortification is to ensure that an undertaking in damages has actual value and is not merely a hollow promise.”[36]Mr Ross raised an argument as to the information provided to the Judge before making the injunction orders in December 2023 concerning various sections of the Companies Act 2006. Section 479 of the Companies Act 2006 allows companies which are part of a group not to file audited accounts when, during the relevant financial year, it was both a subsidiary undertaking and was dormant.[37]Section 479C provides that a guarantee is given by a parent undertaking when a subsidiary, dormant company does not file audited accounts. That guarantee relates to all outstanding liabilities to which the subsidiary company is subject at the end of the relevant financial year. Unless the liabilities have been satisfied in full, the guarantee is enforceable against the parent undertaking by any person to whom the subsidiary company is liable in respect of those liabilities. The Applications The October 2024 application

The Applications

[38]The first aspect of the October 2024 application was the application to “set aside or vary” the injunction order made in December 2023. Although the court does have power pursuant to the Civil Procedure Rules, and in particular CPR 3.1(7), There are very limited circumstances, as noted in the Tibbles case, where the court will consider varying an order.[39]The Defendants assert that there has been a material change in circumstances because the Claimant’s financial position is asserted to have weakened and therefore concerns are now present about the ability of the Claimant to meet its cross undertaking. In addition, the Defendants rely on their application to strike out the claim against Mrs Wright because of clause 8.6 of her Settlement Agreement.[40]The Claimant submits that there is no jurisdictional basis to permit an amendment to the December 2023 order. The order was made on notice. The Defendants were represented by counsel. The order itself does not give any right to apply to the Defendants to amend. In fact, they were specifically excluded from the category of people who were permitted to make an amendment application. They did not appeal the order made and at the time they were represented.[41]I accept the representations made by the Claimant that there is no realistic jurisdictional basis to amend the December 2023 order. However, the Defendants are litigants in person and, reading the applications, witness statements and their skeleton argument together, it appears to me that what they actually seek is to discharge the injunction on the basis of a material change in circumstances. The material change would include, if granted, the strike out or granting of summary judgment in respect of the Claimant's claim against Mrs Wright and the weakened financial position of the Claimant.[42]In support of the applications to strike out the case against Mrs Wright, or for summary judgment in respect of it, the Defendants seek to rely on covert recordings made. In his witness statements concerning the admission of recordings into evidence, Mr Ross makes a number of assertions about what the transcripts of the recordings establishes. The transcripts had been prepared by professional transcribers and thus I determined it was not necessary to listen to the recordings themselves for the purposes of the applications to be decided.[43]The Defendants seek to rely upon the recordings at this stage because it is asserted that the recordings established that the Claimant had knowledge of all of the key facts before entering into the settlement agreements on 5 May 2023. In other words, the Defendants assert that the recordings demonstrate that the various complaints made about misuse of monies by the Defendants now were all completely within the knowledge of the Claimant before those settlement agreements. In those circumstances, the Defendants assert that there are no grounds for bringing a claim against Mrs Wright because of clause 8.6 of her settlement agreement.[44]The Claimant objected to the admission of the audio recordings and then, in turn, of the additional witness statement producing the transcripts for two main reasons. The first reason was as a result of CPR 31 dealing with the disclosure of documents. It was argued that application to admit the audio recordings was premature. If the audio recordings and the transcripts of them were “key documents” relied upon in support of the Defendants’ defences, they should have already been provided by way of initial disclosure. They were not so provided. In due course, the recordings would be disclosed with the usual disclosure of documents when that is ordered. Therefore, no order was needed now. The second argument was that this was in effect an ambush because the issue was not dealt with in the Defendants’ skeleton argument.[45]I accept that the documents, if key documents, should have been disclosed in the initial disclosure. However, parties have an ongoing duty of disclosure. It is relevant that there is an application to strike out or for summary judgment in respect of the claim against the Second Defendant. In my judgment, the Defendants should be entitled to rely upon the evidence contained within the audio recordings. As I determined at the start of the hearing, it was not necessary to listen to the audio recordings, but the transcripts were admitted, and assumed to be accurate, for the purposes of considering the applications before the court.[46]In my judgment, it was just and proportionate to do that in order to consider the application to strike out or for summary judgment. The assertions made in the witness evidence of the Defendants already before the court is that the covertly recorded conversations demonstrated that the Claimant was fully aware of all of the relevant transactions. The content of the conversations as transcribed and what the transcripts demonstrate will be dealt with when considering the strike out and summary judgment applications.[47]Although I have permitted reference to the transcripts for the purposes of the applications, I note that there has not yet been argument as to whether or not those covert recordings should be excluded as evidence. It is important therefore to record that whilst I have given permission to adduce the transcripts of the recordings for these applications, it should not be assumed that permission will be granted to rely upon them or the recordings at trial.[48]The second part of the October application was the amendment of the December 2023 order. I will consider below whether the injunction ought to be discharged or amended or whether an order for fortification of the undertaking can or should be made below. The December 2024 application Strike Out or Summary Judgment

The December 2024 application

[49]The main application which needs to be considered is the application for strike out or alternatively summary judgment in respect of the claim against the Second Defendant. The basis of the application is that the claim has no realistic prospect of success because it was compromised by the settlement agreement with her dated 5 May 2023.[50]Mr Ross asserted that “Jason Drattell obviously had knowledge of allegedly wrongful payments” as he made a number of comments during the covertly recorded telephone call on 4 April 2023. Those comments relied upon include assertions of “one impropriety after another. Blatant lies, misappropriation, breach of fiduciary responsibility, I would certainly argue fraud, and a conflict of interest”. Others included “We will let you keep the money we believe was stolen”, “… you’re gonna spend your last days with lawsuits”, “you should repay it, the money somewhere. And what I offer, we're offering, you don't have to repay it” . Mr Ross and Mrs Wright were adamant that the Claimant would not have been offering a walk away if they did not know everything.[51]I accept that from the reading of the full transcript of the conversation between Mr Ross and Mr Drattell, it is clear that Mr Drattell was aware of at least some asserted financial wrongdoing and so I accept that the Claimant had knowledge about some transactions which were asserted to be fraudulent and in breach of fiduciary duty.[52]The difficulty, in my judgment, is that there are no specifics in the conversation about amounts of money and any specific transactions which are said to have been wrongful. There are broad assertions of Mr Ross hiding things from, for example, HMRC and management but nothing specific at all, other than an assertion that in addition monies were given to Mrs Wright.[53]The second transcript was of a conversation on 9 April 2023 between Mr Ross and Mr. Allott. Again, details of the conversation are extracted to allege that Mr Allott plainly had knowledge that materials for the Defendants’ house were purchased by the Claimant. In addition, misuse of the payments relating to deferred consideration and director's loan accounts can be identified from comments made by Mr Allott.[54]I do not accept Mr Ross’s interpretation of the transcript between himself and Mr Allott. The words relied upon in terms of knowledge of spending in respect of the house were spoken by Mr Ross. In response to those words, Mr Allott says “Right”. Later in the transcript, Mr Allott discusses with Mr Ross a conversation which he had with Gary Miller the previous day, where something was mentioned about having to “tidy some credit card things up”. Then Mr Allott says that he said to Gary Miller (one of the Claimant’s financial personnel), “You told me only last week that nobody knew about this credit card, so I wouldn't mention that”.[55]I accept that there were some discussions about what may have been unauthorised payments in respect of a house. I do not accept that the content of the transcript is sufficient to identify exactly which transactions Mr Ross and Mr Allott were discussing. Nor do I accept that reference to the credit card is sufficient to establish that a credit card had been misused and in what respect.[56]Considering the transcript as a whole, it is clear that there was unhappiness within the Claimant company between various employees or directors about some of the transactions which were being done generally at the company. It is not possible from that conversation to identify exactly which transactions or groups of transactions were being referred to with any precision at all.[57]By itself, or in conjunction with the Defendants’ other evidence, the transcript is not sufficient to establish full knowledge on behalf of the Claimant. The Claimant has witnesses who assert that they did not have knowledge when the settlement agreements were made. They state that the relevant allegedly wrongful transactions were only identified as a result of a forensic accounting exercise identifying what monies had been spent on what. That exercise was difficult when some of the accounts had been mislabelled, allegedly by or on behalf of one of the Defendants. The Claimant asserts the forensic accounting exercise was done after finalisation of the settlement agreements.[58]Whilst it may be that this is fruitful material for cross examination at a trial, it is not sufficient in my judgment to establish that there is no realistic prospect of success in pursuing the claim against Mrs Wright. It is not possible to find that the transcripts can bear no other meaning than that all of the relevant wrongful transactions were known to the Claimant before the settlement agreements were signed.[59]In addition, Mr Ross asserts that Mr Drattell would become threatening if challenged. He exhibited an e-mail dated 30 January 2023 where Mr Ross relied upon an extract from the email which he said demonstrated Mr Drattell becoming threatening. The words relied upon are, “Let me know by tonight if you re [sic] signing as is or we all get on a call and discuss who manages the company going forward. I m [sic] tired of this back and forth”. Reading those words by themselves, I do not see the words as threatening. Reading the words in the context of the rest of the email, even less so.[60]Mr Drattell was complaining about Mr Ross’s lawyer trying to “over negotiate” in respect of an agreement and he said there would be no further negotiation. Against the background of the fallout between the parties, I do not accept that the only conclusion which can be drawn is that these words were or were intended to be threatening.[61]It may be that a Judge would come to a different conclusion having heard all evidence, but for the purposes of this application, I do not accept that this email helps to establish Mr Ross’s assertion of Mr Drattell becoming threatening. Even if threatening behaviour was established, it is not clear to me how the Defendants say that such behaviour would affect the issue of knowledge in any event.[62]The relevance of whether there might be another interpretation to an email or a transcript is that much of what is in dispute is the different recollections of the Defendants and various employees of the Claimant, and their understanding at the time of the various transactions and whether those transactions were wrongful. Unless there is evidence to demonstrate that there is no realistically possible explanation other than that the Claimant was fully aware of all of the allegedly wrongful transactions before the settlement agreements were signed, the Claimant has a realistically arguable case which is not fanciful.[63]Mr Ross also sought to rely on some emails between himself and the Claimant’s former lawyers in September and early October 2023. Mr Ross was being asked to explain various payments which had been identified in respect of some transactions. There is a dispute between Mr Ross and the lawyers about whether Mr Ross needed further documentation from the lawyers before he could answer the questions posed to him about the various transactions properly. He also referred me to a document said to be the metadata for the spreadsheet which had been attached to one of those emails from the Claimant’s lawyers. He identified that the metadata identified that the document had been created on 17 January 2023.[64]It is correct that the metadata shows the creation of the document on 17 January 2023. However, the metadata also shows that the document was last modified on 28 September 2023. There is no metadata to identify what information was originally on the document created in January 2023 and when information was added until the document was last modified on 28 September 2023. In my judgment, that does not assist with what information was known when the settlement agreements were entered into in May 2023.[65]In respect of Mr Boydell’s evidence, Mr Ross submitted that, for example, considering the Sage accounting references, the Claimant must have known about the various payments which predated the settlement agreement. This was because those payments were made by somebody other than the Defendants as the Defendants did not have access to the Sage accounting software.[66]Mr Ross gave examples of instances where he had requested further information from the Claimant and it had not been provided. For example, he referred to an email dated 21 March 2023 from Mr Gary Milner to Mr Ross which email attached two documents. Mr Ross asserts that they are the same documents which were later disclosed by the Claimant’s present solicitors to which he identified as being created on 17 January 2023. It may be that is correct. However, it is not possible to confirm that that is the case from the documentation to which Mr Ross referred.[67]The other evidence filed by Mrs Wright and Mr Ross in support of the strike out application consists of their understanding or recollection of conversations which took place before the settlement agreement, their interpretation of the various agreements and the fact that, for example, some management accounts were not available before the Judge made the December 2023 order.[68]As to the interpretation of clause 8.6 of the settlement agreement with Mrs Wright, I accept the submission of the Claimant that the issue of what constitutes knowledge is a question of contractual interpretation, to be objectively determined, taking into account the background facts as decided. There certainly are circumstances, as set out for example in the Bilta case, where knowledge of some or all of the directors of a company may or may not amount to knowledge on the part of the company itself. In my judgment, it is not as simple as establishing that one particular director or employee of the Claimant knew about a particular transaction and therefore the company is deemed to have knowledge of that transaction.[69]In her witness statements, Mrs Wright also asserts that the claim which is being pursued against her is entirely founded on facts known to the company before the settlement agreement. Much of her knowledge comes from Mr Ross. She relies upon the fact that the Defendants have asked for various documents to consider reconciliations of director's loan accounts and deferred consideration but that has not been provided. She also describes various discrepancies in the documentation which has been provided. She gives some explanation to some of the payments shown on some of the records. However, in my judgment, those queries and discrepancies by themselves are not sufficient to establish that there is no realistic claim against her.[70]I accept that there are various emails which may suggest that some enquiries had been completed before the signing of the settlement agreement. One such email is that dated 17 March 2023 from David Boydell to Mr Ross confirming that some queries concerning payments made to the solicitors DWF in relation to the York property had been “fully reconciled with DWF for a few weeks now”. I do not accept that this email, either in isolation or in conjunction with the other evidence of the Defendants, plus consideration of the transcripts, assists the court in determining that there is no case against Mrs Wright.[71]Although Mrs Wright says that her understanding is that an account cannot be reconciled without knowing where to allocate every payment, in the absence of explanation from Mr Boydell as to what he meant by stating that they were reconciled with DWF, and whether linked or associated payments had in fact been dealt with by March 2023, the email does not really assist. I do not accept that her assessment of internal transactions and to what they relate is enough to demonstrate sufficiently that the Claimant has no realistic prospect of successfully arguing a lack of knowledge on its part before entering into the settlement agreement.[72]In any event, some of the wrongful payments alleged can only be dealt with by hearing oral evidence, given the dispute of fact. For example, in relation to the building materials used to build the Scunthorpe property, an agreement is asserted that as the Claimant could buy materials at an advantageous price, the price of the materials would be offset against deferred consideration. That plainly requires oral evidence.[73]Whilst Mr Ross referred to the case of Stack v Dowden, that had not been mentioned in the skeleton argument before the hearing and so the Claimant had not dealt with that argument. Further, that argument had also been raised and was considered by the Judge before making the December 2023 injunction order in any event. I am not satisfied that the legal argument in respect of a trust relating to the York property is sufficiently straightforward for a summary judgment application in any event. Evidence would be required and there are disputes on the facts.[74]Whilst it may well be that all of the individual payments relating to the proprietary claim against Mrs Wright were able to be seen as recorded between May 2022 and March 2023, I do not accept the Defendants’ arguments that because that is before the date of the settlement agreement, that automatically means that the Claimant had knowledge. It may be, as is asserted by the Claimant, that individual payments could be seen. However, the circumstances in which those particular payments had been made and whether or not they were for the benefit of the Defendants or the Claimant arguably was not known.[75]In addition, a good amount of the detail concerning the transactions and knowledge about them was attributed by Mr Ross to the then financial director, Gary Milner. The Claimant’s evidence about the recording of transactions was that Mr Ross was treated as the owner of the Claimant. Gary Milner would speak to Mr Ross and, on the instruction of Mr Ross, would tell the finance team to record or code an invoice or payment in a particular way which did not always seem relevant. As such, it is realistically arguable that any information known or which ought to have been known by Gary Milner is not attributable to the Claimant.[76]A further issue relating to the credibility of the arguments made by Mr Ross, in particular in relation to knowledge attributable to the Claimant, comes from the transcripts which Mr Ross relied upon. It is clear that there were positive efforts by Mr Ross and others to keep secrets from directors, such as keeping quiet about the house that Mr Ross was building. In those circumstances, in my judgment, it would be wholly improper to grant summary judgment or to strike the case out.[77]For all of the reasons given above, the Defendants’ applications for strike out and/or summary judgment are dismissed.

Fortification

[78]In respect of the discontinuance of the injunction, I do not accept that there has been a material change in the circumstances concerning the merits of the case from when the injunction was granted in December 2023. It is right that the court considers whether there has been a material change of the financial position of the Claimant and whether fortification should be ordered.[79]I accept the legal submission made by the Claimant that it is not possible to order fortification in respect of undertakings in damages given in respect of an injunction after the decision is made on the injunction (see for example Commodity Ocean).[80]If I am wrong about that, the test for fortification has three requirements:(1) that the court has made an intelligent estimate of the likely amount of loss which could be suffered, being informed and realistic as to that amount;(2) that the applicant has shown a sufficient level of risk to require fortification, that is, a good arguable case to that effect; and(3) that the making of the interim order is or was a cause without which the relevant loss would not have been suffered.[81]No evidence was given about the losses which the Defendants were concerned would not be compensated by the Claimant. All of these submissions went to the potential risk of that happening.[82]The Defendants were represented by counsel when the injunction order was made. All of the evidence asserting that the Claimant, and in particular Mr. Allott, knew about the alleged wrongful payments before the settlement agreements was before the court before the injunction orders were made. The new evidence is essentially the transcripts of the telephone calls. As determined above, I do not accept that those transcripts are sufficient to establish that the Claimant knew or ought to have known about the alleged wrongful payments before the signing of the settlement agreement in May 2023.[83]Further, I do not accept that the further concerns raised by the Defendants about the Claimant's financial position are sufficient in any event to justify fortification of the Claimant’s undertaking. Nor do I accept that the concerns relating to the financial position of the Claimant would have prevented the injunction being granted when all the circumstances were taken into account by the court when those orders were made.[84]A section 479 of the Companies Act 2006 argument was raised during the hearing. In my judgment, that section does not assist the Defendants either. The argument raised at the hearing was that the Claimant had deliberately withheld relevant information from the Judge before he made the December 2023 injunction orders. At the date of the 2023 hearing, the balance sheet produced showed accounts to the end of September 2022 and had a balance sheet value of £5,000,000 for the Claimant. However, Mr Ross asserted that was misleading because of the £18 million debt owed to PLC2. When that debt materialises, the Claimant would be insolvent by £13,000,000.[85]Various financial documents from 2024 were identified in the bundle by Mr Ross which he relied upon as showing a deterioration in the financial position of the Claimant. Those documents included the extension of an overdraft with no evidence supporting the financial footing of the Claimant, losses being shown on the accounts and the adjustment of the financial year end in order to delay the filing of statutory and audited accounts. All of that he said was very suspicious. I gave permission to the Claimant to produce evidence on this issue as they had been taken by surprise during the hearing.[86]The witness statement of Serkan Dede dated 19 March 2025 deals with the loan of £18 million from PLC2 to the Claimant. Mr Dede referred to Mr Ross’s 8th witness statement in which Mr Ross referred to the position of the subsidiary companies against which the £18 million debt was secured. The Claimant was the parent company of those five subsidiary companies. As such, the Claimant provided the guarantee in respect of the £18 million debt.[87]It is correct that there is now further evidence before the court concerning the relevant debt. Mr Ross therefore argues that if this additional evidence was before the Judge determining the injunction application, he would have made a different decision. Mr Ross argues that the Claimant chose to rely on accounts from September 2022 and it appears from the evidence of Mr Serkan in his March 2025 witness statement that the Claimant may have been aware that the debt had become an immediate liability by December 2023.[88]Mr Ross then argues that even if the Claimant was not aware that the debt was immediately repayable by December 2023, the fact of the liquidation of the subsidiary companies means that a contingent debt has unarguably become an actual debt now. Mr Ross argues that is a material change because the Claimant now has debts of £13 million. The fact of the liquidation is a default event and so the debt is now crystallised.[89]The Claimant relies on the evidence before the Court in December 2023. The accounts from September 2022 were exhibited and they clearly note, “The Company has given unlimited guarantees to the primary funder in respect of indebtedness to the lender of the related company, Vesso Limited. At 30 September 2022, the indebtedness amounted to £13,689,737 (2021 - £14,465,501)”. Those accounts were exhibited to Mr Serkan Dede’s affidavit. In that affidavit, he set out that the loan was agreed in 2016 and was repayable in 2021. Due to Covid-19, the Claimant shut for a period of time in 2020. Thereafter, PLC2 invested in the Claimant by extending the loans on a rolling basis and did not enforce the loan.[90]The Claimant therefore argues that the Defendants’ argument is not new. Further, both Defendants were still directors of the Claimant and are listed as such on the September 2022 accounts which they must have approved. They could and should have raised these points at the on notice hearing in December 2023 (when they were legally represented) before the injunction orders were made. Alternatively, they could have appealed the injunction orders made.[91]The Claimant also asserts that the Defendants’ arguments are contradictory. You cannot assert that the position was clear in December 2023 and so the orders should not have been made and then say the debt has crystallised since then. The evidence in the affidavit of Mr Serkan Dede made it clear that there had been default since 2019 or 2020 so a default event cannot be the difference between the debt being contingent and actual.[92]In my judgment, it is incorrect to say that the Judge did not know about the debt. Nor is it correct to say that information was hidden in such a way as to mislead. The Judge was fully aware of the loan from PLC2 before making the injunction orders. The affidavit makes it clear that there had been default on the loan and PLC2 “did not enforce its outstanding loans”. That is a clear statement in my judgment which indicates an immediate acknowledgement of the debt owed pursuant to the previously explained guarantee provided by the Claimant.[93]Mr Dede set out further information about the debt and how it was structured within the group in his March 2025 statement. Until April 2023, Vesso Limited (“Vesso”) was the parent company of the Claimant, as referred to in the annual accounts filed. In April 2023, PLC2 took ownership of the Claimant’s shares by enforcing the share pledges it held with the Claimant. Those share pledges had been provided, as well as fixed and floating charges, in respect of the £18 million debt owed by the Claimant to PLC2.[94]There had been charges recorded against the subsidiary companies, as was usual in a group of companies, for the benefit of the lender. Although Vesso remained the borrowing entity, security had been provided by the Claimant and its subsidiaries on behalf of Vesso. There was thus no reason for PLC to release its security. In short, the situation remained practically the same as it had been before the December 2023 orders had been made.[95]The evidence given in that witness statement was criticised by Mr Ross. This was on the basis that the Defendants were criticised as being responsible for bookkeeping in the relevant periods, were fully aware of the structure of the loan and how it was secured.[96]Mr Ross asserted that Mr Dede did not deal with the issue. Mr Ross criticises the Claimant for not filing financial information which they could have done. Further, he criticises a further extension to the financial year end which had the effect of delaying the filing of accounts for a further three months. In short, Mr Ross accused the Claimant of playing the system and deliberately not filing relevant information. He asserted that PLC2 has had time since it became a person of significant control in relation to the Claimant.[97]I do not accept the Defendants’ argument based on the Companies Act 2006. The issue of the £18 million debt was specifically raised by Mr Serkan Dede in his affidavit before the decision was made by the Judge to injunct the Defendants in December 2023. Information about the loan was plainly provided.[98]Even if the loan was not specifically portrayed in the accounts as a current liability of the Claimant, the affidavit clearly referred to the debt before the injunction hearing. The Judge was aware of the liability and how that liability was secured, even if the status of the liability (or at least how it is secured) has since changed. I do not accept that there has been a material change in the financial circumstances of the Claimant. I accept the Claimant’s submission that the Claimant’s arguments are contradictory.[99]It may be that some of the matters complained about by Mr Ross are “not the actions of a Claimant with nothing to hide” as he asserts. However, in my judgment, the very fact of the extent of the financial details set out in Mr Ross’s 13th and 14th witness statements make it clear that the arguments are not straight forward. There are issues as to the financial status of the Claimant and why certain liabilities are not shown in accounts or explained by the Claimant. There are also questions about what the relationship is between the various companies in respect of the debt.[100]All of those issues will require oral evidence and explanation in due course. However, even if the issue of fortification could properly be raised, I am not satisfied on the evidence that the Defendants have established a significant worsening of the Claimant’s financial position than was the case before the December 2023 injunction orders were made. In addition, they have not provided evidence about any alleged losses. In those circumstances, I would not in any event order fortification for all the reasons given.[101]I accept that there have been significant financial, psychological and emotional impacts on Mrs Wright and on Mr Ross as a result of these proceedings and the events leading up to them. Unfortunately, complicated litigation with seemingly entrenched parties, such as seems to be the case here, can have such impacts on all those involved.

Order

(1) to admit recorded evidence including audio recordings of conversations between the Claimant’s representatives and Mr Ross; and(2) to set aside or vary the injunction orders of Mr. James Pickering KC, sitting as a Judge of the High Court, dated 21 December 2023 against Mrs Wright and Mr Ross. Order: (1) to admit recorded evidence including audio recordings of conversations between the Claimant’s representatives and Mr Ross; and (2) to set aside or vary the injunction order of Mr. James Pickering KC sitting as a Judge of the High Court dated 21 December 2023 against Mrs Wright. The application was supported by the 4th witness statement of Mrs Wright. 30.10.2024 6th witness statement of Mr Ross. 31.10.2024 5th witness statement of Mr Ross. 25.11.2024 7th witness statement of Mr Ross. 27.11.2024 Hearing before His Honour Judge Davis-White KC: The Defendants did not attend the hearing and sought an adjournment. Mrs Wright had been transferred on 26 November 2024 from Scunthorpe General Hospital’s A&E Department to a residential care facility because of concerns for her mental health. The Judge noted that the Defendants had made various requests in witness statements which were not in the application notice. The Defendants were given permission to file a further application. His Honour Judge Davis-White KC transferred the claim to the Business and Property Courts in Leeds. 04.12.2024 Application made by the Defendants (“the December application”): (1) to strike out the particulars of claim against Mrs Wright or alternatively summary judgment for her on the basis that the claim against Mrs Wright had been settled by her settlement agreement dated 5 May 2023 and accordingly had no prospect of success; and (2) To discharge the injunction order made against the Defendants, or, in the alternative, an order requiring the Claimant to fortify its cross undertaking in damages by providing adequate security. Applications were supported by the 6th witness statement of Mrs Wright and the 8th witness statement of Mr Ross. 05.12.2024 7th witness statement of Mrs Wright. 18.12.2024 Reply to Mr Ross’s Amended Defence and Reply to Mrs Wright’s Amended Defence. 20.12.2024 Witness statement of Mr David Boydell for the Claimant. 01.02.2024 8th witness statement of Mrs Wright. 02.02.2025 The October and December applications were listed to be heard on 5 March 2025. Affidavit of Mrs Wright. 14.02.2024 9th witness statement of Mr Ross. 25.02.2024 10th witness statement of Mr Ross. 26.02.2025 11th witness statement of Mr Ross. The Defendants made an application to rely upon the following witness statements: (1) Witness statements for Mr Ross dated 04 January 2025 (8th), 14 February 2025(9th), 25 February 2025(10th) and 26 February 2025 (11th exhibiting a transcript of the hearing of 27 November 2024); and (2) A witness statement for Mrs Wright dated 01 February 2025 (8th). 04.03.2025 12th witness statement of Mr Ross. 05.03.2025 Hearing before HHJ Kelly of the October 2024 application, the December 2024 application, and the February 2025 application. At the hearing, the Defendants made oral applications: (1) to rely upon the witness statement of Mr Ross dated 4 March 2025; and (2) for permission to play recordings to the court during the hearing. Permission was granted to rely upon the witness statement of Mr Ross dated 4 March 2025 and the February 2025 application was granted to rely on additional witness evidence in respect of the December application. Permission was refused to play the recordings during the hearing. During the course of the hearing, an issue had arisen concerning the relevance and operation of section 479 of the Companies Act 2006. The Claimant was given permission to file and serve written evidence and written submissions on this issue by 4pm 19 March 2025. The Defendants were given permission to file and serve written evidence and written submissions by 4pm 7 April 2025. The applications were adjourned pending the further evidence and submissions. 19.03.2025 The Claimant filed a witness statement dated 19 March 2025 from Mr Serkan Dede on CE file at 17:54. 19.03.2025 Mr Ross wrote to the court to inform the court that the Claimant had not filed or served “evidence or submissions regarding the relevance and operation of section 479 of the Companies Act 2006 by 4PM on 19 March 2025” in accordance with the order of 5 March 2025. In light of the non-compliance, the Defendants requested: “1. The Claimant be debarred from relying on any evidence or submissions concerning section 479 of the Companies Act 2006. 2. The court draw an adverse inference from the Claimant’s failure to comply, namely that there is no valid basis for the Claimant’s assertion it would be able to meet any award the court would make in relation to damages “The cross undertaking” 3. We respectfully request the court order the Claimant pay £500,000 into court or whatever sum the court feels appropriate within 14 days. 4. Further, that the Defendants are not required to file responsive evidence and submissions by 7 April 2025 due to the absence of any materials from the Claimant.” On inquiry from the court, Mr Ross confirmed (in an email dated 9 April 2025) that his letter had been provided to the Claimant’s solicitors. The email also showed proof of filing on CE file of the Claimant’s statement at 17.54 and service on the Defendants by email at 18.05. 24.03.2025 13th witness statement of Mr Ross. 28.04.2025 Her Honour Judge Kelly caused an e-mail to be sent to the parties in the following terms: “The Defendants' letter dated 19 March 2025 and the Defendants' email dated 9 April 2025 have been referred to the Judge. If the Defendants want the various orders to be made as set out in their correspondence, including the disbarring of the Claimant from relying on the evidence served late, they will need to make a formal application supported by evidence. If the Claimant wishes to rely upon the evidence served late, it will need to make an application for relief from sanctions supported by evidence.” 01.05.2025 The Defendants emailed the court stating that they did not intend to make a formal application at this time but reserved their position in relation to the Claimant’s evidence, including objecting to its admissibility and/or weight at the appropriate time. 12.05.2025 The Claimant applied for relief from sanctions for the late filing and service of the witness statement of Mr Serkan Dede dated 19 March 2025. 22.05.2025 14th witness statement of Mr Ross. 27.05.2025 The Claimant’s solicitors sent an e-mail to the court stating that they had received the 14th witness statement of Mr Ross. The Claimant did not intend to respond by way of written evidence as no permission had been given to rely upon that 14th witness statement. However, it corrected some factual assertions made by Mr Ross which were not accepted. 28.05.2025 Order made by HHJ Kelly granting the Claimant’s application for relief from sanctions drawn and sent to parties. The Law