‘WE ASK YOU: To issue a written warning to the officials of [SGS] and [Felix] about the inadmissibility of the acquisition of shares/participatory interests in [Intimere] owned by [Felix] by way of accepting the ROF Offer without obtaining the prior consent from the [FAS].’
‘It is not good enough simply to impute the knowledge and intentions of others onto Halimeda, as a separate legal person, at all stages. Sian says that the nature of conspiracies is such that the conspirators do not leave evidence lying around. It is inherently difficult to prove them, as one is forced heavily to rely upon inference. That is right, but the Court must decide a case upon evidence. It can draw inferences, but based upon evidence. A conspiracy theory such as is being advanced by Sian, though it has that superficially attractive feature of explaining everything, requires a lot of parts and players all to fall into their right places, at their proper times and to function seamlessly with no more plausible or probable bona fide or innocent explanation. The mere possible existence of such a conspiracy does not suffice for raising a sufficient cross-claim against Halimeda. Sian would have to go further. Causation is necessary.’
‘I am prepared to accept for present purposes that there is some truth to Sian’s conspiracy theory. I say that because of the following two factors: 1. The alleged conspiracy theory here follows a pattern that the Court has seen in other cases played out in Russia and other countries of the CIS; 2. It is all too convenient for these liquidation proceedings to be targeting precisely the linchpin company, control over which would determine whether Halimeda’s ultimate principal or his apparent business rival will have control over the corporate group as a whole. These are big picture points. But there is a tension between big picture points and looking at detail. For my part, dwelling for a moment on the big picture, I can see the force in Sian’s argument that Halimeda’s winding up application has been brought for a collateral purpose as part of a hostile take-over strategy, and thus that Halimeda is abusing the process of the Court. But it is not the law that the Court should decide the matter by simply looking at what appears to be the big picture.’
‘A purpose on the part of business rivals to wrest control of a group thus, of itself, does not turn the application into an abuse of process. The question is whether there are exceptional circumstances. Here, there are not in my respectful judgment: One, because there is no prima facie case that Halimeda caused Sian any loss through an unlawful means conspiracy, as so far alleged by Sian. And, secondly, it is inherent in the nature of commerce that where a company does not or cannot pay its debts when they fall due, that the company is at risk of being wound up. That is a commercial risk a businessman runs when he uses, or is content to use, a given corporate structure.’
‘The learned judge rejected the argument of abuse of process for two reasons. The first is based on the finding that there is no prima facie case of a UMC. That finding logically erodes the foundation for an abuse of process determination. In the second, the judge found that the winding up petition was an incident of doing business, implying that he was satisfied that the real purpose of the application was to recover the debt. Those findings were open to him on the circumstances of this case. The judge applied the applicable law and having assessed the evidence, arrived at those conclusions, which in my estimation were reasonable and justifiable on the evidence before him.’
‘If the risk in question were merely that a claimant could not enforce a judgment because the assets were in a remote place or were likely to be illiquid or insufficient to meet a judgment, the ‘just and convenient’ test would become a cloak for the provision of security for the claim.’
‘It is, in any event, necessary when contemplating a freezing order (as with any injunction) to consider whether it would in all the circumstances be just to impose it. This stage of the process involves taking account of the strength of the case on the merits and the risk of dissipation of assets, but also the circumstances as a whole and where the balance of justice lies. There is no exhaustive list of factors to be taken into account. Some factors often likely to be relevant are mentioned in Gee on Commercial Injunctions (6th ed) at § 12-042: the balance of prejudice between the parties; whether an order would interfere unacceptably with the interests of third parties; or whether an injunction might destroy the defendant's business.’
‘… there is no reason why the court should not shut the gate, however late the application, in the hope, if not the expectation, that some horses may still be in the field or, at the worst, a miniature pony.’