Fibula Air Travels SRL v Just-US Air SRL [2026] EWHC 1270 (Comm)

[2026] EWHC 1270 (Comm)Case No LM-2022-000220
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 27/05/2026
Before
PAUL MITCHELL KC
Between
FIBULA AIR TRAVEL S.R.LRespondentJUST-US AIR S.R.LApplicant
Dr Doğan Gültutan, solicitor advocate, Greymore for RespondentMs Emilie Gonin and Mr Robert Steele (instructed by Consortium Legal Limited) for ApplicantHearing Hearing date: 22 May 2026
APPROVED JUDGMENTThis judgment was handed down remotely at 15:00pm on 27 May 2026 by circulation to the
[1]On 1 May 2026, I granted a post-judgment Worldwide Freezing Order (“the WFO”) against the Respondent (“Fibula”) following the hearing of a without notice application made by the Applicant (“Just Us”): the judgment has neutral citation number [2026] EWHC 1040 (Comm). On the return date, 22 May 2026, Just Us sought to continue the WFO and vary its terms. The most significant variation sought is to remove the “ordinary course of business” exception which, if present, permits the respondent to a freezing order to expend moneys in the ordinary course of business without thereby being in contempt of the main operative provisions of the order as long as prior notification is given of that expenditure if it exceeds a defined threshold. Fibula, by contrast, sought the discharge of the WFO on the grounds that there was no risk of unjustified dissipation by Fibula of its assets; alternatively, a variation of the existing order to raise the threshold in the “ordinary course of business” exception from €2,000 per transaction to €40,000.[2]There were three bundles for the hearing: a copy of the bundle prepared for the without notice hearing on 1 May, comprising 1,929 pages; a bundle for the return date hearing (3,997 pages); and a supplemental bundle (310 pages). There was also an authorities bundle containing 15 authorities and occupying 237 pages. The hearing was listed for half a day; in the end pre-reading took half a day and the hearing itself nearly the whole day. When submissions were finished, I decided to reserve judgment and order that the WFO continue for a further few days pending delivery of this judgment.

Background

[3]I gave judgment on Just Us’s counterclaim against Fibula on 12 December 2025, neutral citation number [2025] EWHC 3259 (Comm). I ordered that judgment be entered against Fibula for the entire sum claimed by Just Us, being €5,603,991 including interest (“the Judgment Sum”). The order also recorded that Fibula had made an application to stay execution of that Order pending determination of its application for permission to appeal (“the Stay Application”); and that Just Us had undertaken not to take any steps towards enforcement until the Stay Application had been determined.[4]Fibula had made the Stay Application before my judgment had been handed down, i.e., it had taken that step in breach of the embargo imposed on taking actions between the circulation of a draft judgment and its formal handing down. Having considered representations from the parties I directed that no further action would be taken regarding the fact that breach of the embargo for the reasons I gave in an email dated 12 December 2025. The evidence filed in support of the application on 11 December 2025 comprised the Ninth Statement from Fibula’s then solicitor, Mr Zafer Armutlu of Hudson Morgan Williams (“HMW”), exhibiting documents he had obtained from the Romanian equivalent of Companies House showing Just Us’s financial statement for the calendar year 2024. Mr Armutlu’s contention was that if Fibula were ordered to pay the Judgment Sum to Just Us, then in the event of a successful outcome of its proposed appeal, Just Us would not be able to repay that sum.[5]Between 12 December 2025 and 3 March 2025, the parties filed further statements regarding the Stay Application: Just Us’s Chief Executive Officer filed responsive evidence on 26 January 2026; Mr Armutlu responded to that statement by his Tenth Statement dated 2 March 2026; and Just Us’s CEO replied to that by another statement on 3 March 2026.[6]There was a consequentials hearing on 9 March 2026 at which I dealt with costs and gave two further relevant judgments. In the first, [2026] EWHC 840 (Comm), I refused Fibula permission to appeal; in the other, [2026] EWHC 841 (Comm), I dismissed the Stay Application but made an order that Fibula pay the Judgment Sum plus further accrued interest (the total now amounting to €5,710,851) into court, the said sum not to be released until the happening of one of various outcomes for Fibula’s intended renewed application to the Court of Appeal for permission to appeal.[7]In my judgment on the Stay Application, I recorded the factual basis on which Fibula had made that application at [3]:
“Now, here it is not contended on behalf of Fibula that its application for permission to appeal and, if granted, the appeal itself could be stifled were the judgment sum not paid. It is also not contended on behalf of anyone that if a stay is granted and the appeal fails, that would have a prejudicial effect on Just-Us in enforcing the judgment. Everything is put on the proposition that permission to appeal will be granted, the appeal will succeed and at that point when Fibula seeks repayment, Just-Us will not be able to pay the money back”
[8]My understanding there recorded derived not only from the fact that there was no evidence in the bundles before me to support an argument that an appeal could be stifled if the Stay Application were not granted. As I set out in my judgment of 1 May 2026, at the hearing on 9 March 2026, then Leading Counsel for Fibula, Mr Bradley KC was accompanied by representatives from HMW. Mr Bradley said this:
“If a stay is refused, what are the risks of an appeal being stifled? Well, we don't labour that point to any great degree, so I'm not pushing the court on that. If a stay is granted and an appeal fails, what are the risks that the respondent will be unable to enforce the judgment? Well, we say we are prepared, we have indicated in our application itself, that we are prepared to pay the money into escrow or into court in the alternative so those risks are not significant.”
[9]He went on: “In fact, they do not feature at all and obviously if the court ordered us to pay the money into court and we didn't, that is the end of our appeal”.[10]There was actually nothing automatic to that effect in the order ultimately made, but that statement by Mr Bradley on behalf of Fibula is the first representation relevant to this application: Fibula’s express position was that if the stay application were not granted and if an order were made that money be paid into court, such an order would not have the effect of stifling the application that was going to be made to the Court of Appeal for permission to appeal nor any appeal thereafter.[11]The other relevant thing that Mr Bradley said on instructions is contained in this exchange: Judge:
“If you were obliged to make a payment, for example, into escrow pending the Court of Appeal's decision on the application for permission, you could make that payment within how many days?”
Mr Bradley:
“Let me take instruction on that if I may, my Lord. I am told 28 days, my Lord. Certainly, as a plan B, we would take that over plan A on their side.”
[12]I believe “plan A” was that the full judgment sum be paid immediately and not into escrow.[13]What was said between counsel during the period that they were drafting the order is also relevant. On 13 March 2026, there was a series of email exchanges between various members of the counsel teams on Fibula's side and Ms Gonin on Just Us’s side.[14]In these exchanges, Ms Gonin had initially tried to set the date for the payment into escrow to be within 14 days. That was changed by Mr Bradley, or by Ms Kim, to 28 days. There was also discussion between Ms Gonin and Ms Kim, copying Mr Bradley, about the payment being into court as opposed to a payment into escrow.[15]Mr Bradley replied on 13 March, so four days after the hearing:
“You will recall at the end of the hearing I clarified with the judge that a payment into court may prove to be preferable to a payment into an escrow account… Our instructions are that our client would prefer that the payment should be made into court to be held on the terms of the draft order, rather than be held in an escrow account in your client's solicitor's name. I hope this can be agreed.”
[16]In the end, it was so agreed. The order of 9 March 2026 recorded that Fibula was to pay the updated Judgment Sum into court within 28 days, i.e., by 6 April 2026.[17]By no later than 30 March 2026, Fibula had disinstructed HMW, Mr Bradley, and Ms Kim. In place of HMW, Fibula instructed Dr Gültutan at Greymore and a new counsel team. As anticipated at the hearing on 9 March 2026, Fibula renewed its application for permission to appeal to the Court of Appeal. It also made a further application to the Court of Appeal, to stay the execution of the Order I had made on 9 March 2025 requiring it to pay the Judgment Sum into court (“the Court of Appeal Stay Application”).[18]In the Court of Appeal Stay Application, Fibula produced evidence in support of the proposition that not granting the stay would indeed stifle the proposed appeal. I shall address the relevant parts of that evidence below, but in summary Fibula’s starting position, expressed in a witness statement from its managing director, Mr Muharrem Mavisu and dated 30 March 2026, was that it could not pay the Judgment Sum into court and if it were obliged to do so, that would stifle its appeal.[19]In response to this, Just Us filed its own application on 13 April 2026 for an order that unless Fibula pay the Judgment Sum into Court, its Appellant’s Notice be struck out (“the Unless Order Application”). The evidence in opposition to Fibula’s application and in support of Just Us’s came from Just Us’s solicitor, Mr Adrian-Alexandru Iordache of Consortium Legal. In his Tenth Statement in these proceedings, dated 13 April 2026, he pointed to the representations made by Fibula on 9 March 2026 as recorded above and analysed the claims made by Mr Mavisu that Fibula could not afford to pay the Judgment Sum into court.[20]Mr Iordache’s statement was met with a response from Fibula’s new solicitor, Dr Gültutan, dated 27 April 2026. Dr Gültutan sought to address various queries raised by Mr Iordache about Fibula’s financial position; and he also offered an explanation for how it came about that Mr Bradley had told me on 9 March 2026 that Fibula did not rely in the Stay Application on any argument to the effect that refusal to grant a stay might stifle any appeal:
“In summary, our understanding, which HMW was invited to correct if inaccurate (but did not do so, principally on the basis of non-payment of fees) is as follows: (i) the client’s express agreement was not sought on the payment of the judgment sum into escrow in return for the grant of the stay of execution; (ii) the skeleton argument and grounds of appeal were provided to the client in draft only three days before the Consequentials Hearing with no express mention of the Escrow Condition in the covering emails; and (iii) specific instructions were not sought from the client on the issue during the Consequentials Hearing itself (or before).”
[21]Dr Gültutan also gave evidence in his statement that Fibula was seeking to implement a court-approved debt restructuring scheme in its place of incorporation, Romania, i.e., that Fibula was seeking to enter some kind of insolvency-type process.[22]Upon considering Dr Gültutan’s evidence, Just Us made the without notice application for a Worldwide Freezing Order which came on before me on 1 May 2026. That application was supported by the Second Affidavit of Mr Iordache dated 29 April 2026 and then his Third Affidavit dated 30 April 2026.[23]As at 1 May 2026, therefore, the following applications were outstanding: i) Fibula’s application to the Court of Appeal for permission to appeal; ii) Fibula’s Court of Appeal Stay Application; iii) Just Us’s Unless Order Application; and iv) Just Us’s without notice application to this court for the WFO.[24]As I have already stated, on 1 May 2026 I granted the WFO, being satisfied on the evidence before me, and having had the assistance of Ms Gonin on behalf of Just Us, that there was a real risk that Fibula might be unjustifiably dissipating its assets in circumstances where Just Us had a judgment against it.[25]The WFO was served on Just Us on 1 May 2026. I approved a transcript of my ex tempore judgment on the same day and the transcribers provided it to Fibula on 5 May 2026. At that date, Greymore was not acting for Fibula in connection with the WFO, only with the appeal; Greymore was instructed to act on the WFO on 16 May 2026.[26]Also on 5 May 2026, Lord Justice Foxton considered the three remaining outstanding applications on the papers he had (which did not include the Second Affidavit of Mr Iordache in support of Just Us’s application for the WFO, and of course did not include the evidence that is before me on this return date) and gave the following rulings.[27]First, he granted permission to appeal on two of the four grounds advanced by Fibula and refused it on two grounds. The nub of the case that is going forward to appeal is whether the payment obligation in the Lease (as defined in my judgment of 12 December 2025) creates a single obligation to pay one sum, being the aggregate value of the Minimum Guaranteed Block Hours as I had held; or whether, properly construed, the lease provides for a series of separate payment obligations, each accruing on the date stated that a payment is to be made. In giving his decision, Foxton LJ also observed “It should be noted that on the basis that permission on Ground 4 has been refused, then the first instalment is due from [Fibula] even if the appeal succeeds… even if the appeal succeeds, the Applicant will owe the Respondent the first instalment, and, in all probability, some costs.”[28]Second, Foxton LJ refused the Court of Appeal Stay Application. He held that the Court of Appeal Stay Application was not in itself an abuse of process and said that, since he had given permission to appeal, circumstances had in any event changed. That change of circumstances meant that he did not have to consider what he called “the sensitive territory of what advice the Applicant’s former solicitors may have given”. He accepted one of Just Us’s criticisms of the evidence of Mr Muharrem Mavisu, that it did not address the possibility the owners of Fibula or other members of the group of companies to which it belonged could provide funding to pursue the appeal.[29]He concluded that on the evidence before him, Fibula could not pay the Judgment Sum into court from its own resources and said that he was not persuaded Fibula could not raise funds to meet its costs liabilities (meaning, I understand, its obligations to pay its own lawyers costs of the appeal). Furthermore, he said that it was not clear any lifting of the stay that would automatically follow from the non-payment of the Judgment Sum into court would cause any immediate prejudice to Fibula, on the basis that he had no evidence about the realities of enforcing the Judgment Sum where Fibula has assets nor the effect on any enforcement attempt of the fact that permission to appeal had been given. The result was that he declined to grant any further stay and noted that it remained open to Just Us to commence enforcement proceedings if so advised.[30]Finally, he dismissed Just Us’ application for an unless order, saying:
“[Just Us’s] application for a condition being imposed on the pursuit of the appeal is also refused. The appeal is arguable and I am not persuaded it is not being pursued in good faith. There is no evidence of any asset dissipation. I have accepted the evidence as to [Fibula’s] own financial difficulties. [Just Us] can proceed with enforcement efforts. No compelling reason for imposing a condition has been made out…”

The evidence on the return date

[31]I have noted above that between 1 and 16 May 2026, Fibula was acting in person in relation to the WFO. On 11 May 2026, Mr Muharrem Mavisu signed a document called his “First Affidavit”, which was served by email on Just Us’ solicitors on 12 May 2026. This affidavit is in a slightly unusual format, in that it comprises two columns, the left-hand one being in Romanian and the right-hand one in English and it does not fully comply with the provisions of CPR 32PD paragraphs 4, 5 and 6. It nevertheless contains a statement in terms that the deponent believes the facts stated are true, and it appears to have been affirmed before a notary public, and I shall refer to it hereafter as Mr Muharrem Mavisu’s First Affidavit for convenience.[32]In his First Affidavit, Mr Muharrem Mavisu said that he was providing the information which Fibula had been ordered to provide by paragraphs 11 and 12 of the WFO, being details of any of Fibula’s assets valued at €2,000 or more and copies of bank statements for various accounts particularised in the order. As well as doing that, he also said that he was responding “point by point to all evidence and claims presented by Just Us”.[33]On 18 May 2026, Consortium Legal raised a series of questions about Mr Muharrem Mavisu’s First Affidavit by email. On 19 May 2026, Mr Iordache filed his Eleventh Statement in support of Just Us’ application to continue the WFO until further order. On the same day, Greymore filed the Second Statement of Mr Muharrem Mavisu, also dated 19 May 2026. Finally, on the afternoon of 21 May 2026, the parties filed a supplemental bundle containing records of their email exchanges in recent days and Fibula’s answers to the questions posed by Consortium Legal on 18 May 2022.[34]My judgment granting the WFO on 1 May 2026 states the facts upon which I formed the view that there was a real risk of dissipation. Put shortly, these were that: i) The fact that Fibula apparently had money to pay the Judgment Sum into court on 9 March 2026 but did not have the money to pay it on 6 April 2026 was concerning; and the evidence given to explain the financial position was completely unsatisfactory; ii) The explanation offered by Fibula for the stance it took on 9 March 2026 – effectively, that its former solicitors acted without instructions – was not supported by the evidence; and the fact that such serious allegations were made without satisfactory evidence in itself heightened concerns; iii) The fact that the interim payment on account of costs I had ordered to be paid had not been paid also stood as evidence of a risk of dissipation; iv) The evidence from Fibula regarding its financial affairs suggested that it was not being transparent and gave no confidence that Fibula was taking seriously the order which Fibula itself had invited me to make as the alternative to Just Us’s “Plan A”, i.e., to paying the Judgment Sum within a short period of the consequentials hearing.[35]I now turn to review the position disclosed by the further evidence before me on the return date.

The evidence regarding Fibula’s financial position on 9 March and the “distress payment”

[36]In my judgment on 1 May 2026, I said this at paragraphs [22] – [35]: “22. The witness statement referred to in that application of Mr Muharrem Mavisu is actually dated 30 March, not the 27th. It contains the following evidence, among other things. At paragraph 6, a copy of which is at page 1318 of this bundle, he said: ‘As further confirmed by Bolovan Ana, the certified public accountant for Fibula, Fibula's total liabilities exceed 10,856,880 euros and ‘the company is currently operating under significant financial pressure following distress payment made on 9 March 2026’23. Now, that statement in quotation marks comes from the witness statement of sorts provided by Ms Bolovan Ana, a copy of which is also in the bundle at page 1324. That statement itself is in the English language.24. Mr Mavisu’s witness statement, as we can see from page 1320 and following, was prepared in the Turkish language and then as we see from page 1319 was translated from Turkish into English.25. It may be the case that what Ms Bolovan Ana said was translated first into Turkish and then put back into English, but I note that the original English of Ms Bolovan's statement is repeated verbatim in the English translation of Mr Mavisu's statement.26. At paragraph 8 of Mr Mavisu's statement, he also said this: “The distress payment made on 9 March 2026 exhausted Fibula's remaining primary liquidity. As Fibula's stamped bank statements demonstrate, the company lacks the funds required to meet the court's escrow condition”27. Then exhibited were a series of bank statements, which I have not considered in great detail.28. Just-Us served evidence in reply to that application that had been made by Fibula in the Court of Appeal on 13 April and on the same day, applied to the Court of Appeal for an unless order which I think the Court of Appeal is dealing with. But on 27 April, Fibula's new solicitor put in a further witness statement to the Court of Appeal addressing various points that had been picked up by Just-Us in its evidence to the Court of Appeal on 13 April. Relevantly for present purposes are the following.29. I turn to page 1775 of the bundle, which is the witness statement of the new solicitor for Fibula, Mr Dogan Gultutan. What he said at paragraph 54 of his statement was that it had recently come to his attention that ‘a translation error’ was made in Ms Bolovan's initial report of 26 March, which was then incorporated into the Mavisu statement: ‘The applicant is apologetic regarding this oversight and inadvertent error. Our instructions are that the error-free translation should read [and then this is not in quotation marks, but what the words are] if the escrow payment as ordered on 9 March were to be made, then that payment would put the applicant under extreme financial distress and would lead to its insolvency. Ms Bolovan has produced a further statement to clarify these matters’30. It is impossible to see how the original text of paragraph 6 of Mr Mavisu’s statement could have been mistranslated, because it was provided in English. So there is no mistranslation possible here. Not in the sense that is described in Mr Gultutan's witness statement.31. Furthermore, the explanation given by the supposed error-free translation is that no payment was made on 9 March. The whole point is if it were made, that would be a disaster. But it will be recalled that paragraph 8 of Mr Mavisu’s statement said in terms that such a payment had been made and that had led to the removal of all liquidity. He is, of course, an officer of the company; the equivalent of a director. It beggars belief that he could have made a statement that a payment had been made which stripped out liquidity in circumstances where, in fact, a payment had not been made but if it were made it would strip out liquidity. The two things are so different it is almost impossible to understand how such a mistake could be made.32. Further confusion arises when one looks at the second statement of Ms Bolovan Ana, which is found at page 1854 of the bundle, where she explains that on the earlier occasion she had prepared the statement in English and she says that she prepared it in a state of hurry to meet a deadline and there seems to have been an error in translation. What she appears to mean by that is that in her own mind when she wrote in the English language, she mistranslated what she believed in her head while thinking in Romanian. So she says this statement she has prepared in her own language was a translation into English, but none of that meets the points that I have just been referring to about Mr Mavisu’s statement.33. Another oddity of this statement from Ms Bolovan Ana, the second one, is she says at paragraph 8: ‘I explain in section 2 below the payments that Fibula has made since 15 January and it will be seen from there that no such payment was made on 9 March 2026’34. Her position is thus that no payment was made and that is evidenced in section 2 of her statement. But when you go to section 2 of her statement it comprises a single sentence which reads: ‘Most payments made were based on the payment of salaries, social security contributions, obligations to suppliers necessary to perform their current work, as well as the establishment and/or payment of guarantees for the 2026/27 tourist season.’35. There is no assistance at all in there demonstrating that a big payment, which could be characterised as a distress payment, was made or was not made on 9 March 2026. The situation is very unsatisfactory, because you have evidence in a sworn witness statement that the payment was made and further evidence in a sworn statement that it was not. But no further evidence from Mr Mavisu who was the one who made the original sworn statement and he, of course, is the director” ‘As further confirmed by Bolovan Ana, the certified public accountant for Fibula, Fibula's total liabilities exceed 10,856,880 euros and ‘the company is currently operating under significant financial pressure following distress payment made on 9 March 2026’ “The distress payment made on 9 March 2026 exhausted Fibula's remaining primary liquidity. As Fibula's stamped bank statements demonstrate, the company lacks the funds required to meet the court's escrow condition” ‘The applicant is apologetic regarding this oversight and inadvertent error. Our instructions are that the error-free translation should read [and then this is not in quotation marks, but what the words are] if the escrow payment as ordered on 9 March were to be made, then that payment would put the applicant under extreme financial distress and would lead to its insolvency. Ms Bolovan has produced a further statement to clarify these matters’ ‘I explain in section 2 below the payments that Fibula has made since 15 January and it will be seen from there that no such payment was made on 9 March 2026’ ‘Most payments made were based on the payment of salaries, social security contributions, obligations to suppliers necessary to perform their current work, as well as the establishment and/or payment of guarantees for the 2026/27 tourist season.’[37]In Mr Muharrem Mavisu’s second statement, he addressed the preparation of his First Statement like this: “9. In the context of the breakdown of trust with our former legal representatives, and the matters evidenced by the exchange of emails, the machine translation prepared under the pressure and severe time constraints of Fibula’s limited appeal application was absolutely not prepared in bad faith. As a result of that translation error, both my report and Ms Ana’s report inaccurately suggest that a payment had been made. That was entirely a translation mistake. When preparing the appeal application, we were working under significant time pressure and were required to prepare a number of documents within a very limited timeframe. I personally discussed the appeal with Ms Ana and the difficulties that Fibula could face if it were required to make an escrow payment. After obtaining her views on the matter, and given the urgency of the situation, I prepared witness statement in Turkish. I explained its contents to her, and she confirmed that it accurately reflected her position. I then used an artificial intelligence translation tool to translate the statement into English and share it with our solicitors. Regrettably, the error was not identified before the statement was filed with the Court. The issue was identified during a meeting with the solicitors. Furthermore, in Romanian, which is Ms Ana’s native language, the true intended meaning, namely the payment of the mandatory order made by the Court on 9 March, was correctly clarified and subsequently presented to Just Us’s representatives together with an apology”.[38]This explanation is significantly different to the earlier explanations reviewed in my judgment of 1 May 2026: i) Mr Mavisu appears to be suggesting that he – rather than Ms Ana – prepared, in Turkish, the statement in her name which was exhibited to his First Statement. And yet Ms Ana herself, in her second statement, said that she had prepared her first statement in English. ii) It may be therefore that Mr Mavisu is saying that he prepared his own statement in Turkish and then discussed its contents with Ms Ana. And yet that too cannot be right, because in his First Statement Mr Mavisu was quoting from Ms Ana’s English-language statement.[39]For these reasons, I cannot realistically place any reliance on Mr Mavisu’s explanations for what was said about the “distress payment” in paragraph 6 of his First Statement.[40]Furthermore, and in any event, Mr Mavisu nowhere addresses how it was that he could have given the evidence he gave in paragraph 8 of his First Statement, that the “distress payment” had been made and as a result of it, Fibula’s liquidity had been exhausted. No matter what language his own statement was first prepared in, Mr Mavisu would have known (on his current evidence) that the evidence in paragraph 8 of his First Statement was not true. This was something I expressly relied on in my judgment as a relevant fact; but Mr Mavisu has not answered it.[41]In my judgment, even if the true position is that no distress payment was made, the fact is that it appears Mr Mavisu was content for evidence to go before the Court of Appeal in support of an application for a stay which contained a material and misleading statement in his paragraph 8; and he has not, despite now having Greymore to advise him, seen fit to correct or explain that. I accept that at least some attempt was made to correct the impression given in paragraph 6 of his statement; and yet the explanation given for how the evidence came to be as it was in the first place is wholly inadequate.

The allegation that HMW acted without instructions

[42]In my judgment of 1 May 2026, I set out the evidence before me on that occasion about this issue as follows between [36] – [45], giving my conclusions about its at [50] – [51]: “36. Also in his statement of 27 April, Mr Gultutan introduced a new complicating feature to the story in that he said when Mr Bradley told me on instructions that payment could be made within 28 days, in fact, no such instructions had been given at all. At page 1769 of the bundle, paragraph 22 of Mr Gultutan's statement, he says: ‘It would appear that the applicant's previous solicitors Hudson Morgan Williams proposed the escrow mechanism and the possibility of payment within 28 days without having clearly and properly advised the applicant on the consequences of that condition and without having obtained the applicant's express agreement.’ 37. Then there is a footnote to that assertion which is: ‘For the sake of completion, no privilege is waived in any manner whatsoever. In any event, if the contrary is found, any waiver is to be taken in its narrowest meaning and does not extend to unrelated privileged communications.’ 38. So in support of the very serious allegation that solicitors and/or counsel acted without instructions before me, no evidence is to be provided in the form of contemporaneous documents. There is merely the evidence which Mr Gultutan has produced now. 39. In paragraph 33B of his statement at page 1772, he says that specific instructions were not sought from the client during the consequentials hearing or before on the question of paying the judgment sum into escrow: ‘HMW confirmed that its instructions generally had been that any payment should be into escrow rather than directly to just us, on the basis that funds paid directly to the respondent might not be recoverable. However, the specific terms of the condition, including critically the 28 day payment window, were not expressly approved by the applicant.’ 40. He goes on: ‘In summary, our understanding, which HMW was invited to correct if inaccurate but did not do so principally on the basis of nonpayment of fees, is as follows:(i) the client's express agreement was not sought on the payment of the judgment sum into escrow in return for the grant of the stay of exclusion [sic];(ii) the skeleton argument and grounds of appeal were provided to the client in draft only three days before the consequentials hearing with no express mention of the escrow condition in the covering emails, and;(iii) specific instructions were not sought from the client on the issues during the consequentials hearing itself or before.’ 41. That is what he says his understanding was. In the bundle at 1818 is an email of 18 April 2026 from Mr Gultutan to HMW, the former solicitors summarising, in very similar terms to the ones I have just read out, his understanding and saying, ‘Please kindly confirm the accuracy of our above understanding.’ 42. But contrary to what is stated in Mr Gultutan's statement which I have just read out, in fact there was a reply on 21 April which appears at page 1817 in which Mr Armutlu of HMW said, ‘Thank you for your email. Unfortunately, we do not agree with how your client has instructed you.’ 43. Mr Armutlu simply did not accept the statement of facts as presented to him by Mr Gultutan. 44. That is not all, because also in the bundle there is a document provided a copy of an email sent by Mr Muharrem Mavisu to Mr Armutlu and others at HMW Law complaining about their alleged negligence. One of the things said in that email at page 1814 is this: ‘Negligent escrow advice and loss of appeal rights. Despite knowing our company's lack of liquidity, you pressured us to offer an escrow payment instead of pleading impecuniosity. This negligence knowingly extinguished our right to appeal.’ 45. The right to appeal obviously has not been extinguished, but more significant is the fact that in this complaint what he is saying is in terms that he was pressured into offering an escrow payment in circumstances where his solicitor is saying that no instructions were given. … 50. The second point, however, which Ms Gonin argues is that the complete change of position between 9 March and the application to the Court of Appeal is very relevant, because you cannot square the propositions now advanced about the impecuniosity with the assertions made by counsel apparently on instructions to the opposite effect. That is a very serious change and the explanations offered for it are simply not capable of being accepted on their face. 51. I have gone through what was said about the instructions that were given. The evidence in relation to that is totally unsatisfactory. Privilege would, I think, have to be waived to make good any of these points, but the contemporaneous documents I have seen do not support the proposition that former solicitors and counsel acted without instructions. Quite the contrary.” ‘It would appear that the applicant's previous solicitors Hudson Morgan Williams proposed the escrow mechanism and the possibility of payment within 28 days without having clearly and properly advised the applicant on the consequences of that condition and without having obtained the applicant's express agreement.’ ‘For the sake of completion, no privilege is waived in any manner whatsoever. In any event, if the contrary is found, any waiver is to be taken in its narrowest meaning and does not extend to unrelated privileged communications.’ ‘HMW confirmed that its instructions generally had been that any payment should be into escrow rather than directly to just us, on the basis that funds paid directly to the respondent might not be recoverable. However, the specific terms of the condition, including critically the 28 day payment window, were not expressly approved by the applicant.’ ‘In summary, our understanding, which HMW was invited to correct if inaccurate but did not do so principally on the basis of nonpayment of fees, is as follows: (i) the client's express agreement was not sought on the payment of the judgment sum into escrow in return for the grant of the stay of exclusion [sic]; (ii) the skeleton argument and grounds of appeal were provided to the client in draft only three days before the consequentials hearing with no express mention of the escrow condition in the covering emails, and; (iii) specific instructions were not sought from the client on the issues during the consequentials hearing itself or before.’ ‘Negligent escrow advice and loss of appeal rights. Despite knowing our company's lack of liquidity, you pressured us to offer an escrow payment instead of pleading impecuniosity. This negligence knowingly extinguished our right to appeal.’[43]The further evidence on this issue before me on the return date was as follows.[44]In his Second Statement, Mr Mavisu said the following:
“1. Fibula’s management experienced a significant shock following the Court’s decision dated 12 December 2025. After such a lengthy, exhausting, and costly litigation process, and having been the unsuccessful party, Fibula urgently sought to understand why the case had been lost and to obtain advice in relation to an appeal and an application for a stay of execution. Accordingly, on 20 December 2025, Fibula raised a number of urgent and entirely legitimate questions with its former solicitors and barrister. 2. As no response was received, further requests for answers were sent by email on 11 February 2026 and again on 18 February 2026. The responses to these critically important questions for our company were only received on 20 February 2026”
[45]Exhibited to Mr Mavisu’s statement were the emails of 20 December 2025, 11, 18 and 20 February 2026. Dr Gültutan stated in his skeleton submissions that “[Fibula] hereby confirms that it waives privilege over the relevant correspondence and communication insofar as is required to make good this point” (the point being that any representation made to the court on 9 March 2026 was made without authority).[46]These emails were generated after the Stay Application was issued on 11 December 2025; but Mr Mavisu is silent about how that application came to have been prepared or authorised. The impression given by the evidence I have just set out is that enquiries were not made about the possibility of an application for a stay of execution until 20 December 2025.[47]Mr Mavisu’s Second Statement goes on:
“4. Whilst Fibula had expected to succeed in the proceedings, the judgment dated 12 December 2025 found against it on the defence. Without properly explaining the reasons for that outcome, our former legal advisers focused primarily on Just Us’s potential financial losses in advance of the hearing listed for 9 March 2025 and concentrated solely on securing a stay of execution and preserving appeal rights. Despite being fully aware of our financial circumstances, they failed properly to consider the consequences of the proposed payment… and instead placed us under pressure whilst maintaining that the case had effectively been won. 5. As is apparent from the emails and chronology, the grounds and skeleton arguments prepared in relation to the defence of the proceedings were only provided to us on 6 March 2026, approximately three hours before the documents were uploaded to the system. In those circumstances, we were not afforded sufficient time properly to review the documents or develop arguments in response. Furthermore, as can be seen from the documents themselves, the requirement to pay funds into escrow was referred to only briefly in the final paragraph. During our meeting, we did not even appreciate that point or have any opportunity to discuss it, notwithstanding that it was very well known to those advising us that such funds were simply not available. Put another way, the escrow payment proposal was never discussed with us, and no instructions were sought from us before representations were made to the Court that such a payment could not be made”
[48]Mr Mavisu nowhere in his evidence addresses the emails passing between counsel for the parties on 13 March 2026, nor how Mr Armutlu’s Ninth and Tenth Witness Statements (of 11 December 2025 and 2 March 2026) came to be prepared and what engagement Fibula had with that process. In the exhibit to Dr Gültutan’s First Statement dated 27 April 2026, there was a copy email exchange between him and Mr Armutlu on 15 and 16 April 2026. On 15 April 2026, Dr Gültutan asked Mr Armutlu “without waiver of any privilege” to share with Greymore “(1) the legal advice provided to the client in respect of the escrow and the related undertaking; (2) any communication/ correspondence with the client in respect of the escrow and the related undertaking; (3) clients’ written confirmation (if any) of their agreement to the escrow condition being imposed”.[49]Mr Armutlu replied on 16 April 2026 as follows (in relevant part):
“Your questions 1 to 3 can be addressed together. Since judgment was handed down, and in anticipation that the stay application might be refused, we advanced the alternative position that any payment be made into an escrow account. This was in line with our former client’s instructions, namely the concern that funds paid directly to Just Us might not be recoverable. Please see paragraph 20 of the skeleton argument. We are unsure what is meant by ‘the related undertaking’. Having reviewed the court order again, there is no reference to any undertaking. No advice was therefore provided in relation to an undertaking. … Provision of initial stay application materials to client: Please see enclosed the initial stay application materials together with email correspondence evidencing delivery to the former client: 1. The Claimant’s Application Notice, Witness Statement and Exhibits dated 11 December 2025; 2. Email of HMW sending item (1) to the former client on 11 December 2025; 3. The Defendant’s witness statement and exhibits dated 26 January 2026 response to the Application of Stay; 4. Email of HMW sending item (3) to the former client on 26 January 2026; 5. ZA10 Witness Statement and Exhibits dated 2 March 2026; 6. Email of HMW sending item (5) on 2 March 2026; 7. The Defendant’s further witness statement and exhibits dated 4 March 2026; and 8. E-mail of HMW sending item (7) to the former client on 6 March 2026 (the ‘E-mail’) The E-mail also includes as attachments the Appellant’s skeleton arguments and grounds of appeal…”
Provision of initial stay application materials to client: The E-mail also includes as attachments the Appellant’s skeleton arguments and grounds of appeal…”

Provision of initial stay application materials to client:

[50]None of the emails referred to in Mr Armutlu’s email to Dr Gültutan of 16 April 2026 have been disclosed. There is an email dated 6 March 2026 from Mr Armutlu to Mr Muharrem and Mr Ayhan Mavisu, but attached to it is only the consequentials skeleton and the grounds of appeal: it does not appear to be the same email described by Mr Armutlu at paragraph 8 of his email of 16 April 2026.[51]Furthermore, as noted in my judgment of 1 May 2026 at [44], on 30 March 2026 Mr Muharrem Mavisu wrote to HMW complaining of that firm’s alleged professional negligence; one of the heads of complaint was that HMW had allegedly “pressured us to offer an ‘escrow’ payment instead of pleading impecuniosity”. HMW replied to that email on 22 April 2026 saying “Please see attached our firm’s letter in response to your two e-mails dated 30 March 2026. We trust this is self-explanatory”. No copy of that letter has been disclosed.[52]Nowhere in the emails that have been disclosed is there any evidence that Fibula told HMW or its counsel team that it would not be able to afford to pay the Judgment Sum. In the email of 30 March 2026 complaining of professional negligence, there is no complaint made that HMW knew Fibula was impecunious. Despite this, Mr Muharrem Mavisu’s evidence is expressly that HMW was “fully aware of [Fibula’s] financial circumstances”.[53]In my judgment: i) The evidence put before the court by Fibula is incomplete: privilege has been waived but there has not been disclosure of all the documents which obviously fall within the scope of the waiver. ii) Such material as there is does not support the contention being advanced by Fibula that HMW knew it was impecunious. iii) The material disclosed does not show clearly that HMW acted without instructions; and HMW has stated in terms that it does not agree with what Greymore says is its understanding as to how the alternative proposition, that the Judgment Sum be paid into escrow, came to be proposed to the court on 9 March 2026.[54]The court is entitled to assume that when solicitors and counsel speak for their client, they are acting in accordance with their instructions. It was open to Fibula to waive privilege and disclose all the documents that evidence the instructions given and advice received in relation to the proposal that the Judgment Sum be paid into escrow; although privilege has been waived, full disclosure has clearly not been given. In my judgment, the material before the court on this occasion comes nowhere near justifying the proposition that HMW or any of the legal team knowingly or unknowingly might have acted without instructions from Fibula on 9 March 2026.[55]In the absence of clear and full evidence on the point, in my judgment I should continue to view Fibula’s change of position between 9 and 30 March 2026 as unsatisfactorily explained. The point is that on 9 March 2026, Fibula said it could pay the Judgment Sum into court within 28 days; and then for reasons which are still not explained, it later transpired that the money was, after all, not there.

Fibula’s financial affairs – further evidence

[56]Finally, I turn to the evidence before me regarding Fibula’s financial affairs. There was a great deal of evidence, of which I highlight the following: i) Mr Muharrem Mavisu’s position is that Fibula owns only seven assets worth more than €2,000, of which one has been stolen. The total value of these assets is less than €95,000. In the trial balance sheet put before the Court of Appeal appended to Mr Mavisu’s first statement, however (which I referred to in my judgment of 1 May 2026 at [62]), Fibula appeared to have assets of far greater value (at least €5.5 million). As I noted in my judgment, the trial balances were not easy to read, but on any view they appear to show that Fibula owned valuable assets worth much more than the value of the seven items disclosed in Mr Mavisu’s First Affidavit. ii) Pursuant to the terms of the WFO, Fibula has disclosed 11 payments made between 4 and 19 May 2026. Three were tax payments which, expressed in Sterling, totalled just under £12,000; the other 8 were all payments for less than €7,000. Despite these numbers, Fibula initially sought a variation of the WFO to disclosure only of payments in excess of €10,000; and then by the time of the hearing sought to disclose only payments in excess of €40,000. I asked Dr Gültutan why these limits would be needed and he said that Fibula would have to make large payments as the holiday season approached. He pointed to the deposit that Fibula had to pay Just Us under the Lease, which amounted to €765,000, and suggested that similar sums might have to be paid. I asked where the money would come from to pay large sums like this; Dr Gültutan said that it would come from Fibula’s clients. I did not understand at the conclusion of my exchanges with Dr Gültutan on this point why the limit for advance reporting would need to be lifted to €40,000; this seemed to me a figure plucked from the air as there was no evidence to explain it. iii) There was no further evidence regarding the insolvency process described by Dr Gültutan in his witness statement dated 27 April 2026.[57]Most significant was the evidence regarding transfers made by Fibula since December 2025 to a Turkish entity called Mavisu Turizm Ticaret ve Seyahat Acentasi AS (“Mavisu Turizm”).[58]The evidence regarding the relationship between Fibula and Mavisu Turizm was as follows: i) Mavisu Turizm is at least 50% owned by Mr Ayhan Mavisu (Fibula’s sole witness of fact at the trial). ii) Mr Ayhan Mavisu’s evidence at trial (Transcript Day 2, page 83, lines 9 – 13) was that he directed Muharrem Mavisu what to do and the latter always acted in accordance with his directions. iii) As at 31 December 2024, Fibula acknowledged that it had outstanding debts to Mavisu Turizm of €6,035,768; iv) Mr Muharrem Mavisu’s evidence at paragraph 43 of his First Affidavit was that the debt owed by Fibula to Mavisu Turizm corresponded to invoices issued by Fibula to its customers in Romania. He said at paragraph 44 that Mavisu Turizm “repeatedly asked for payment… in respect of those invoiced amounts”. v) Dr Gültutan explained to me in submissions that Mavisu Turizm was a major creditor of Fibula and that after my judgment was handed down on 12 December 2025, Mavisu Turizm demanded payment because it was concerned about recovering its outstanding debt in view of the judgment. He sought to establish a meaningful distinction between creditors of Fibula’s like Just Us and creditors like Mavisu Turizm, on the basis of which distinction Fibula would be entitled to pay Mavisu Turizm in preference to paying Fibula. I could not, however, see any justification for Fibula treating its different creditors differently, still less a justification for preferring a creditor which was closely connected with Fibula over an unconnected third party such as Just Us. vi) The cash sums paid by Fibula to Mavisu Turizm comprised €100,000 on 16 February 2026, purportedly to discharge and partially discharge three invoices dated between September and October 2024; €215,000 on 12 March 2026, purportedly to discharge/ partially discharge invoices issued during September 2024; and €250,000 paid on 24 March 2024, for relatively small invoices issued starting on 2 January 2026 and one large one, for €209,475, issued on 15 March 2026. vii) Furthermore, in his First Affidavit Mr Muharrem Mavisu said this at paragraphs 72 – 73:
“At the same time [December 2025], and during these continuing periods of financial uncertainty, [Mavisu Turizm] repeatedly and formally demanded payment of both historically outstanding debts and continuing invoiced liabilities relating to the ongoing tourism operations for the past operation and 2026 summer seasons. In that context, on 6 March 2026, by notarial instrument no. 145, [Mavisu Turizm] registered a lawful mortgage/ security interest in respect of outstanding receivables and debts owed by [Fibula]” viii) Just Us’s researches established that this mortgage appears to have been to secure a debt of €2,100,000; and the mortgage was registered over land purchased by Fibula in late 2025/ early 2026 using the proceeds of sale of various apartments it owned. ix) Mr Muharrem Mavisu stated at paragraph 83 of his First Affidavit that on 23 April 2026, Fibula transferred the property on which the mortgage was secured to a third party; he said that this transfer was “in satisfaction of the corresponding lawful and invoiced secured debt”
. I do not understand exactly what he meant by that, but what is clear from the documents in the bundle before me is that by 23 April 2026, Fibula had somehow sold a property that it owned (subject to a €2.1 million mortgage in favour of Mavisu Turizm) to a company called Coradyn Invest SRL. Presumably the sale involved the discharge of the mortgage and thus the partial repayment of Mavisu Turizm’s alleged €6m debt; and yet the statutory records which Just Us has unearthed for Coradyn Invest show that it is a very small non-trading company of bakers whose total income in 2025 was just over £4,000.[59]In my judgment, the evidence I have just reviewed above strongly suggests that Fibula has been transferring cash and assets to Mavisu Turizm with a view to ensuring that it – a company which is 50% owned by Fibula’s owner, Mr Ayhan Mavisu – is repaid debts allegedly owed even if those payments reduce the amount available to Fibula to satisfy the Judgment Debt.[60]I am also very surprised by difference between the low value of assets stated to be owned by Fibula in Mr Muharrem Mavisu’s First Affidavit and the value of assets apparently stated on the trial balance sheet from March 2026. It does seem from comparing the two figures that a very great deal of money has left Fibula since March 2026. Even bearing in mind that there might be innocent explanations, I have no evidence before me that gives a cogent explanation to allay the concern that Fibula is divesting itself of assets.

Conclusion on continuing the WFO

[61]I do not repeat the applicable law which is set out in my judgment dated 1 May 2026. When my conclusions at paragraphs 38 to 41, 53 to 55, and 59 to 60 above are taken together, in my judgment the case for continuing the WFO is a strong one. The evidence before me very strongly suggests that Fibula is not being transparent regarding its finances, might not be telling the truth regarding the advice it received from its former lawyers, and has deliberately taken steps to prefer a connected party creditor over its judgment creditor, Just Us. All of these pieces of evidence taken together in my judgment amount to solid evidence of a risk of unjustified dissipation by Fibula of its assets with the intention that its money should not be available to satisfy the Judgment Sum. I shall accordingly continue the WFO.[62]I turn now to the proposed variations sought by the parties: for Just Us, the variation sought is to remove the “ordinary course of business” exception; and for Fibula, the variation sought is to raise the limit at which proposed expenditure must be notified in advance from €2,000 to €40,000.

Removing the “ordinary course of business” exception

[63]In Michael Wilson v John Emmott [2019] EWCA Civ 219, [2019] 4 WLR 53, the Court of Appeal considered the authorities concerning the removal of the “ordinary course of business” exception from post-judgment freezing orders. Gross LJ, with whom Peter Jackson and Rose LJJ agreed, reached the following conclusions at [53] to [57]:
“53. It is time to draw the threads together. First, post-judgment Mareva injunctions are granted to facilitate execution, by guarding against a risk of dissipation over the period between judgment and the process of execution taking effect, where the judgment would remain unsatisfied if injunctive relief was refused: Masri , at para 34. With respect to the dicta in Camdex , post-judgment Mareva injunctions can no longer be described as rare: Nomihold, at para 32. Whether pre-or post-judgment, a Mareva injunction is not intended to confer a preference in insolvency (Camdex , at p 638) and does not form a part of execution itself. 54. Secondly, by reason of its nature and as a matter of realism, a post-judgment Mareva will increase the pressure on a defendant to honour the judgment debt. The mere increase in such pressure does not make it illegitimate or “in terrorem”
. The facts in Camdex were extreme, concerning as they did the Central Bank of a friendly foreign state and the freezing of an asset of no value in the process of execution. 55. Thirdly, in the light of Tomlinson LJ's further reflections in Nomihold , it cannot be said that, without more, the Angel Bell exception would be inappropriate in a post-judgment Mareva. In this regard, the observations of Colman J in Soinco and Tomlinson J in Masri, went too far. 56. Fourthly, it can be said, however, on the basis of Nomihold, at para 33, that “it will sometimes and perhaps usually be inappropriate” to include the exception in a post-judgment Mareva injunction. Given the policy of the law strongly in favour of the enforcement of judgments, as already remarked, it would indeed be curious were the position otherwise-leaving the judgment debtor free to carry on business and ignore the outstanding judgment. The context is that a risk of dissipation must already have been demonstrated, as otherwise no Mareva injunction (with or without the exception) would have been granted at all. Accordingly, over the period between judgment and execution taking effect, a Mareva, without the exception, serves to hold the ring: Sir Jeremy Cooke, judgment, at para 27. 57. Fifthly, I would prefer not to characterise refusal of the exception in a post-judgment Mareva as either a “starting point” or a presumption. For that matter, I would be equally reluctant to pigeon-hole refusal of the exception as a remedy of last resort; there is no warrant for so confining such a decision, save that the more draconian the relief, the greater the need for its justification. Instead and while it strikes me as an obvious matter to consider when granting a post-judgment Mareva, the appropriateness or otherwise of the exception in such a Mareva should be treated as a question turning on all the facts in the individual case. In addressing this question, Tomlinson LJ's test in Nomihold, at para 33 (‘it will sometimes and perhaps usually be inappropriate’ to include the exception in a post-judgment Mareva ), furnishes helpful and appropriately nuanced general guidance. Thus analysed, the decision by a judge to permit or refuse its inclusion is a discretionary decision reached on a fact specific basis, with which this court will be slow to interfere. Furthermore, while a judge, when considering refusal of the exception, would no doubt have regard to the ambit of the Mareva sought, the assets thus frozen and the impact on the judgment debtor's business, I am not at all attracted to the distinction which Mr Doctor attempted to draw between bank balances and other assets; nor do I think that the test for refusal favoured by Tomlinson LJ in Nomihold, at para 33, was in any way confined to balances in bank accounts. In some circumstances, removal of the exception in respect of bank balances could readily prove as destructive of a defendant's business as removal of the exception across the board”.[64]Ms Gonin contended that on the facts of this case it was plainly appropriate entirely to remove the “ordinary course of business” exception from the WFO. Dr Gültutan’s main focus was on the proposition that Just Us could not, in his submission, establish that there had been or would be any unjustified dissipation of assets by Fibula. His argument was that Fibula was doing its best to be transparent and in any event there was now permission to appeal. He also placed some reliance, albeit not a great deal, on the fact that Foxton LJ had said when determining the Unless Order application that there was no evidence before him of a risk of dissipation.[65]Dr Gültutan also made an argument concerning the financial consequences of Fibula’s potential success on the appeal. I have noted above Foxton LJ’s observation that even if successful Fibula would be paying the first instalment due under the Lease, but Dr Gültutan did not accept this was correct. As recorded in my judgment of 12 December 2025 at [62], Fibula had paid a deposit to Just Us of a sum which amounted to the value of two instalment payments. It was this deposit which Fibula launched these proceedings to recover; and its claim to recover that deposit was dismissed on a summary basis by HHJ Pelling KC on 2 March 2022. Dr Gültutan contended that if the appeal were successful there would be no further sum due, on the basis that the deposit paid would discharge the first instalment. In short, although I note that Just Us disputes Fibula’s analysis, Fibula does not accept the position as stated by Foxton LJ when he gave permission to appeal.[66]I have already addressed above the evidence before me which leads to the conclusion that there is a risk of dissipation; it was not evidence before Foxton LJ, who was not, in any event, considering whether to grant a WFO. I accept that in some respects Fibula has given a great deal of evidence regarding its finances and it is clearly not entirely ignoring the orders of the court; but I bear in mind that Fibula also wants to stay in business and so has every interest in giving the impression that it is obeying the orders of the court. I also accept that if Dr Gültutan’s argument regarding the effect of a successful outcome of the appeal is correct then it is possible Fibula could end up owing Just Us relatively little or perhaps nothing at all.[67]The position is thus that, even though there is a judgment against Fibula, and even though Just Us is entitled to enforce the order for payment of the Judgment Sum, there remains uncertainty regarding the final outcome of this litigation. It seems, however, for the reasons I have given above, that Fibula is not taking any chances on the outcome of the appeal and has been transferring value to a connected party, Mr Ayhan Mavisu, and companies owned and/ or controlled by him.[68]One of the cases referred to by Gross LJ in Emmott v Wilson was Nomihold Securities Inc v Mobile Telesystems Finance SA [2011] EWCA Civ 1040, [2012] Bus LR 1166. In that case, Nomihold had an unchallenged arbitration award against Mobile Telesystems Finance (“MTSF”); but, even though Nomihold had registered its award against MTSF, the judgment which was entered against MTSF as a result was not immediately enforceable. This was because MTSF had a right to apply to set aside the order giving permission to enforce the award as a judgment; and had indeed so applied. Nomihold obtained a WFO against MTSF; and on the return date, MTSF successfully applied to remove the “ordinary course of business” exception. The Court of Appeal (Tomlinson and Ward LJJ) held that a WFO could not generally be permitted to effect execution (as opposed to being an aid to execution); and in the particular circumstamces, a WFO could not be granted in that case because execution was not available to MTSF until Nomihold’s application to discharge the judgment entered against it had been determined.[69]The Nomihold case seems to me to be particularly apt to the circumstances here. It is certainly true that I consider the WFO should be continued; but I cannot ignore the fact that the basis for the WFO could crumble away entirely in the event the Court of Appeal allows the appeal for which permission has been given. I also bear in mind Fibula’s position that success on the appeal would mean it has to pay nothing at all to Just Us. While here there is an enforceable judgment, the reality is that it might yet be overturned; and it cannot be right to remove the ordinary course of business exception entirely, thereby effectively condemning Fibula to go out of business, only for Fibula to be discharged from all liability due to success on appeal.[70]That said, it also cannot be right that there be no controls on what Fibula is permitted to do: there is already reason to fear that in the absence of controls Fibula will continue to find ways to take steps which have the effect of transferring value from Fibula to other companies associated with Mr Ayhan Mavisu.[71]I note that in Emmott v Wilson at first instance, Sir Jeremy Cooke narrowed the permission contained in the WFO in that case to spend money on legal advice and representation so that it applied only to certain steps, to prevent wasteful and unjustified expenditure on very hard fought litigation: see [2019] EWCA Civ 219 at [29]. In my judgment I should do something similar here by keeping place an “ordinary course of business” exception (on the basis that the judgment in question here is under appeal), but narrowing it to introduce an absolute prohibition on Fibula transferring money to Mavisu Turizm or any other entity wholly or partially controlled or owned in whole or in part by Mr Ayhan Mavisu. Such a step will have the effect of creating a ringfence around the alleged debts owed by Fibula to entities connected with Mr Ayhan Mavisu, preventing Mr Ayhan Mavisu from requiring Mr Muharrem Mavisu from transferring money away from Fibula and to Mr Ayhan Mavisu’s other interests.[72]On the basis that there is some evidence to suggest that Fibula is trying to maintain its ordinary business as a travel agency/ tour operator and it clearly now has prospects of overturning my original judgment altogether, I consider it must be appropriate to ease the inconvenience for it of trading despite the existence of the WFO. I do not accept, however, that the reporting threshold should be as high as €40,000, as I have heard no evidence to justify a sum that high. Given that the transactions reported so far have been no higher than €7,000, in my judgment the threshold for reporting proposed transactions to Just Us should be €7,000. It should not be very inconvenient for Fibula to email Just Us in advance of such transactions, since it is hardly likely any payments would be made on an urgent basis.

Conclusions

[73]For the reasons given above, and subject to hearing counsel on the precise wording of paragraph 13(2), I shall order that: i) the WFO continues in force until further order; ii) the ordinary course of business exception at paragraph 13(2) of the WFO shall be amended to read:
“(2) This order does not prohibit the Respondent from dealing with or disposing of any of its, her or his assets in the ordinary and proper course of business, but: (a) The Respondent must not transfer any asset or other thing of value of whatever nature to Mr Ayhan Mavisu or any legal or natural person connected with Mr Ayhan Mavisu. By way of example and without limitation, the Respondent must not transfer for any purpose (including by way of loan) cash, land, stocks, shares, or choses in action of any kind. (b) any payments with a value over EUR 7,000 (or equivalent in another currency) must be communicated to the Applicant on the day of the transaction.” (a) The Respondent must not transfer any asset or other thing of value of whatever nature to Mr Ayhan Mavisu or any legal or natural person connected with Mr Ayhan Mavisu. By way of example and without limitation, the Respondent must not transfer for any purpose (including by way of loan) cash, land, stocks, shares, or choses in action of any kind. (b) any payments with a value over EUR 7,000 (or equivalent in another currency) must be communicated to the Applicant on the day of the transaction.”