“(a) The claimant must demonstrate a real risk that a judgment against the defendant may not be satisfied as a result of unjustified dealing with a defendant's assets. (b) That risk can only be demonstrated with solid evidence; mere inference or generalised assertion is not sufficient. (c) It is not enough to rely solely on allegations that a defendant has been dishonest; rather it is necessary to scrutinise the evidence to see whether the dishonesty in question does justify a conclusion that assets are likely to be dissipated. (d) The relevant inquiry is whether there is a current risk of dissipation; past events may be evidentially relevant, but only if they serve to demonstrate a current risk of dissipation of the assets now held. (e) The nature, location and liquidity of the defendant's assets are important considerations. (f) Whether or to what extent the assets are already secured or incapable of being dealt with is also relevant. (g) So too is the defendant's behaviour in response to the claim or anticipated claim.”
“It is not the mere inconsistency between an admission and a pleaded case or a stated position, with the mere possibility that such a case or position, if persisted in, may lead to perjury, that loses the admitting party the protection of the privilege … It is the fact that the privilege is itself abused that does so. It is not an abuse of the privilege to tell the truth, even where the truth is contrary to one's case. That, after all, is what the without prejudice rule is all about, to encourage parties to speak frankly to one another in aid of reaching a settlement: and the public interest in that rule is very great and not to be sacrificed save in truly exceptional and needy circumstances.”
“[11] … the critical question is whether the privileged occasion is itself abused. Although the test remains that of unambiguous impropriety, it may be easier to show that there is an unambiguous impropriety where there is an improper threat than where there is simply an unambiguous admission of the truth. … [23] In the end … what is involved here is an evaluation of whether the threats unambiguously exceeded what was “permissible in settlement of hard fought commercial litigation” (Boreh v Republic of Djibouti[2015] EWHC 769 (Comm) at [132] per Flaux J.”
“… that if he succeeded in obtaining judgment against them, they would have no hesitation in transferring the business of Playsafe to a new company, so as to render any judgment obtained by him effectively unenforceable. It was made very clear by both of these gentlemen that they were determined that John Dora should not be in a position to enforce any judgment which he obtained, as the debtor company would by then have no assets. They were both very open about their intentions in this respect.”
“The evidence alleges that these gentlemen would make sure that the judgment, which might be obtained by Mr Dora, would not be satisfied due to the action they would take, resulting in the company's assets being transferred out of reach of the order of the court. I also take into account the affidavits of Mr Stenning and Mr Simper which state that these statements were never made. They may turn out to be right, but they do not suggest that what is alleged to be said was not improper or that something like that alleged was said, but that it was taken out of context. For that reason, I believe that this case is an exception to the without prejudice rule.”
“The words allegedly used, given their ordinary and proper meaning, amount to an unequivocal implication that the assets of the company would be placed outside the reach of the court by improper means. The words can only have been uttered with the intention or in an attempt to deter the plaintiff from pursuing his rights. Moreover, the words complained of were in themselves capable of amounting to an overt act in furtherance of a conspiracy between the first and second defendants to deter the plaintiff from pursuing his action through the court process and to deprive him of his just desserts should he persist and win. They went well beyond the colourful or exaggerated language test.”
“There is no reason why unambiguous impropriety should be limited to blackmail or threats of perjury. But in practice the vast majority of cases involve one or the other. These cases are, to an extent, fact specific. Close to the line was the disputed conversation to the effect that, if the claimants succeeded, the defendants would put the assets of the company outside their reach, which was said to be a threat to put the assets beyond the reach of the court by improper means.”
“In my view the court should at this stage decide whether the statements would, if proved, form the basis for establishing unambiguous impropriety. It is for the judge who hears the matter to decide whether they do.”
“I also take into account the affidavits of Mr Stenning and Mr Simper which state that these statements were never made. They may turn out to be right, but they do not suggest that what is alleged to be said was not improper or that something like that alleged was said, but that it was taken out of context. For that reason, I believe that this case is an exception to the without prejudice rule.” (Emphasis supplied)
“it is hard to see why significance can be attached to the fact that the directors did not make the suggestions referred to by Aldous LJ. Why should they, when they had denied making the statements at all? All that could be said was that Mr. Forsyth’s evidence, if correct, established unambiguous impropriety.”
“[8 (b)] Ms Li also recalls that Mr. Hacker indicated that Motorola was “very good” at enforcing US judgments overseas and stated his belief that Sino-US relations at that time meant it would be possible to enforce the Judgment in China. Mr. Hacker believed that, even if Hytera had little money to meet any judgment debt, the Chinese government would not allow it to fail and would bail it out. Mr. Xu recalls he disagreed with this statement and explained this would not be the case. [8 (c)] Ms Li has informed me that Motorola believed at the time that it could enforce a judgment over assets in the United States, the United Kingdom, Germany and Canada with a value of around US$ 400 – 500 million. … [11] Ms Li informed me that Mr. Hacker used a flipchart to draw a diagram stating that more than half of Hytera’s annual income is generated outside of China. Mr Hacker gave his opinion that a “retreat” by Hytera from its overseas markets would result in a 50% loss in the company’s income and reiterated Motorola’s intention to execute any judgment over Hytera’s assets at any cost.”
“Hytera and the newly employed Hytera Employees knew that the information they downloaded without permission was confidential, and knew that those documents were replete with Motorola’s trade secrets. Despite this knowledge, Hytera simply copied and used these critical trade secrets in its own competing products – products that bear the hallmarks of Motorola’s innovation, product development, and technical and business strategies. Hytera’s misappropriation was deliberate, wholesale and systematic – not only did Hytera take and then copy Motorola’s technical trade secrets, it even copied the marketing, configurations, and product manuals related to the misappropriated features as well, leaving no doubt about its unlawful scheme.”
“… if, but only if you find: 1. The employer authorized the doing and the manner of the act; or … 3. The employee was employed in a managerial capacity and was acting in the scope of his or her employment; or 4. The employer or a manager of the employer ratified or approved the act”
“If the defendant is a shareholder in a private company and were left free to deal with the assets of the company this could affect the value of his shareholding and could diminish the value of his assets. This may justify an order requiring prior notice of dealing with the company’s assets or an injunction restraining dealings with the company’s assets, albeit that the company is a third party. Where the defendant owns 100 per cent of a company beneficially it might be that those assets are held by the company as a nominee for him because they have been acquired using the defendant’s money and there is a resulting trust. Each case is fact sensitive and may involve the drawing of negative inferences against the defendant and the third party. Even if the company isnot a nominee, the defendant has access to the company’s assetsthrough distributions made to him as a shareholder or throughplacing the company in liquidation. The same might be doneafter judgment by a receiver appointed over the shares in aid ofenforcement of the judgment, and this route can be protected bya Mareva injunction.” (Emphasis supplied)
“The only assets that this court can freeze on this application are English assets; and those are shares in Shortway. That’s all it freezes, the shares in Shortway. There’s no further relief sought or available”
“[T]he judgment creditor or a successor in interest whose interest appears of record may obtain discovery from any person – including the judgment debtor – as provided in these rules or by the procedure of the state where the court is located …”