Francesco Ambrosione v Michel Marie Raoul Gerard Peretie [2026] EWHC 1332 (Comm)
[2026] EWHC 1332 (Comm)Case No LM-2025-000204
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 09/06/2026
Before
ROSALIND PHELPS KC
Between
FRANCESCO AMBROSIONEClaimantMICHEL MARIE RAOUL GERARD PERETIEDefendantStephen Hackett (instructed by Candey) for ClaimantThe Defendant in person for in personHearing Hearing date: 14 May 2026JUDGMENTIf this Approved JudgmentThis judgment was handed down remotely at 14.00pm on 9 June by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
ROSALIND PHELPS KC :
[1]The Defendant seeks, by application dated 13 April 2026, to vary my order dated 9 March 2026 requiring him to pay £250,000 into court as a condition of continuing his defence to the claim (the “ConditionalOrder”).[2]By this claim, the Claimant seeks to enforce an alleged personal guarantee against the Defendant. The guarantee was for £700,000 and with interest the total sums claimed are over £1 million. The Claimant applied for summary judgment. I rejected that application by (judgment dated 3 February 2026), but subsequently considered written submissions and evidence from the parties as to whether the Defendant should pay a sum of money into court or satisfy some other requirement as a condition for continuing to defend the claim.[3]The submissions and evidence were supplied as follows: i) The Claimant provided written submissions on 6 February 2026 in support of his position that there should be a conditional order. Paragraph 13 of those submissions cited the decision in Gama Aviation (UK) v Taverelas Petroleum Trading DMCC [2019] EWCA Civ 119, including the principles that the burden is on the defendant to establish on the balance of probabilities that it would be unable to comply with a condition requiring payment into court, and that in order to discharge that burden a defendant must show, not only that it does not itself have the necessary funds, but that no such funds would be made available to it by a third party. ii) I had originally ordered the Defendant to reply by 12 February 2026. However, on 11 February 2026 I received a letter from Keystone Law, then acting for the Defendant, seeking an extension of time of a week. The letter said that Keystone Law had been unable to take instructions from the Defendant because he had been pre-occupied with personal matter, and sought an extension of one week, which I granted. iii) The Defendant put in responsive submissions signed by counsel, together with the Defendant’s second witness statement and exhibit on 19 February 2026. iv) On 25 February 2026 the Claimant put in written submissions in reply together with the first witness statement of Mr Dunn.[4]Having considered the evidence and submissions on the papers, by a written ruling dated 9 March 2026, I decided that Defendant should pay £250,000 into Court as a condition of continuing to defend the claim ([2026] EWHC 465 (Comm): the “Ruling”). I determined that this was an appropriate case to require a payment in because the Defendant’s prospects of success were real but nevertheless improbable and (relevantly for present purposes), I did not consider that the Defendant had discharged the burden that he was unable to make (or cause to be made) a payment into court (see paragraphs 16-19 of the Ruling).[5]In further email exchanges with the court, the Claimant submitted that the Ruling should lead to an unless order. This was reflected in the Conditional Order which provided that the summary judgment application would be dismissed if the Defendant paid £250,000 into court by 4pm on 13 April 2026 (para 2), but that if this condition was not met within the time allowed, summary judgment would be entered for the Claimant (para 3).[6]There was no appeal from the Conditional Order, but instead the Defendant made the present application on 13 April 2026 to vary paragraph 2 of the Conditional Order to replace the amount of £250,000 with £1,000. The E-filing submission confirmation showed that the application had been lodged at court at 4.03PM on 13 April 2026.[7]At the time of making the application to vary, the Defendant was still represented by Keystone Law. The application was supported by his third witness statement and exhibit, together with an application notice and draft order.[8]The Claimant put in evidence in reply (second witness statement of Mr Dunn dated 24 April 2026), and the Defendant responded with his fourth statement dated 8 May 2026. By this time he no longer retained Keystone law but was representing himself.[9]The hearing took place remotely on 14 May 2026. The Claimant was represented by counsel and the Defendant represented himself with the assistance of a McKenzie friend.
The parties’ submissions in outline
[10]The Defendant sought to persuade me to vary the Conditional Order because of what was described as new evidence as to his asset position and his current inability since the making of the original order to borrow funds from financial institutions, family or friends despite his best efforts to do so. It was argued that the condition to pay £250,000 into court unfairly stifled the Defendant’s defence because he was unable to comply with it.[11]The Defendant’s third witness statement provided “documentary evidence of my finances”, i.e. his income and asset and liabilities position and also set out his various attempts since the Conditional Order to raise money from banks or friends to comply with the condition. He also submitted further evidence in the form of his fourth witness statement in response to the criticisms of his third witness statement levelled by the Claimant. I consider this further below.[12]The Claimant submitted as follows: i) There were insurmountable procedural and jurisdictional obstacles to the application: a) Summary judgment had automatically been entered once 4pm on 13 May 2026 had passed. The application to vary was made too late and/or could not be made in respect of a final order. The appropriate application to have made would have been one for relief from sanction under CPR 3.9. b) There was no possible basis for such an application. The reality was that the Defendant was seeking to re-argue his opposition to the imposition of the original condition. However he had already had the opportunity to oppose the Conditional Order with submissions and evidence and there was nothing in the present application that could not have been put before the court earlier. The relief from sanction regime was not intended to allow a “re-roll of the dice” on a previously unsuccessful position. ii) Even supposing the procedural and jurisdictional obstacles could be overcome, the further evidence contained obvious shortcomings and contradictions such that the Defendant had not discharged the burden on him to show that he was unable to meet the relevant condition. Those shortcomings and contradictions had been pointed out in Mr Dunn’s second witness statement but the Defendant had not taken the opportunity to address them.
The evidence
[13]The Ruling was based on the following key criticisms of the Defendant’s evidence (set out in paragraph 18(i)): i) Lack of supporting documentation to substantiate the points made, and the lack of detail in the initial ‘statement of assets and liabilities’ exhibited to the Defendant’s second statement. ii) Absence of explanations of the liabilities, including to the Defendant’s ex-wife. In particular, the suggestion that the ex-wife was entitled to all of the proceeds of all properties referred to seemed implausible. iii) It was not credible to conclude on the evidence provided that after a successful and long banking career the Defendant had been left with no net assets, no current income and no ability to raise funds. iv) The personal loans referred to in the statement of assets and liabilities appeared to suggest that the Defendant did have sources of substantial funds from third parties. v) The Defendant’s children had had property settled on them and appeared to be another potential source of funds. vi) The Defendant (at that time) was represented by solicitors and counsel, to whom he apparently owed £120,000. It seemed implausible against that background that he had no substantial means.[14]The Defendant’s third witness statement and exhibits served in support of the application to vary dealt with the following matters: i) As regards income: a) It explained in detail the change in the Defendant’s income position from 3 years ago to now. At that time his total annual income was around €565,000 but now the only income is from a French pension of €120,000 of which €48,000 is obliged to be paid to the Defendant’s ex-wife. The amount of income was supported by a copy of the Defendant’s French tax return for the calendar year 2025. b) One of the main changes was that previously the Defendant benefited from a €200,000 salary from RiverRock and €115,000 in annual fees as chairman of Riverbank. However the RiverRock compensation was no longer payable from 2023 when his shareholding was diluted and the new business partner stopped the payment. He no longer held the position at Riverbank, having resigned in May 2025. c) The Defendant’s annual income had also been reduced by the sale of a wine collection (sold in March 2023) and certain life settlement shares (sold in September 2022), for which documentary evidence was also provided. ii) As regards assets: a) The statement provided a detailed explanation of a series of transactions by which the value of the Defendant’s shareholding in Riverbank was diluted (essentially via the transfer of the shares ultimately owned by the defendant into a new corporate vehicle called Talobot Investments LLP, and injections of cash from third parties into the bank, while diluting Talabot). The shares were not able to be used as security for any borrowing because of restrictions in the shareholders’ agreement (which was not able to be disclosed absent a court order). b) Apart from the wine and share sales referred to above, documentary evidence was also provided of other substantial assets sales including the classic car collection referred to in paragraph 13(iii) of the Ruling, as well as shares in a French hotel holding company. c) Screenshots of information about three bank accounts showing either overdrawn amounts or balances of less than €3,000. iii) As regards liabilities: a) Further details were given about the personal “loans” from (or debts owed to) three individuals, including documentary evidence to help support the information given. b) A detailed explanation was provided as to the Defendant’s liabilities owed to his ex-wife and ex-partner. In his original statement of assets and liabilities the Defendant had referred to the fact that two properties in France would pass to his ex-wife on finalisation of his divorce and that also he owed a debt to his “ex-wife” “following sale of London Property in 2018” of €3.46m (see paragraphs 11(ii) and 11(iii) of the Ruling). In his Third Statement, the Defendant explained that the debt regarding the London property was owed to his ex-partner with whom he lived from 2001 until 2020 after separating from his wife, and was essentially her 50% share of the net proceeds of the sale of a joint property. This was evidenced by notarised proof of the debt and a letter from English solicitors. The fact that the process of division of assets from the Defendant’s ex-wife was still ongoing was evidenced by correspondence dated 1 April 2026 from a solicitor acting for his ex-wife. iv) A final section of the statement dealt with the Defendant’s unsuccessful attempts to raise the £250,000 to comply with the Conditional Order, including by setting up meetings with representatives of two banks where he holds accounts (evidenced in the exhibit); meetings with former business partners and associates; and a series of more informal calls with five other friends who have all loaned the Defendant money in the past but who on this occasion declined.[15]The Claimant criticised this evidence in Mr Dunn’s second statement as containing obvious shortcomings and contradictions. In summary the following was highlighted: i) The evidence was suspiciously silent as to sources of income other than those in France. It was inconceivable that the Defendant was not earning some form of substantial income in Dubai and Luxembourg. He remains a director of RiverRock and chairman of Riverbank, which was likely to be associated with compensation of some kind. ii) The evidence as to property ownership was unsatisfactory because the relevant matrimonial property regime gave him a 50% share in assets acquired during the marriage and it was therefore unclear why the properties passed to the Defendant’s ex-wife on their divorce. iii) One valuable classic car seemed to be missing from the list of asset sales. iv) The list of bank accounts may have been incomplete because the banks in Dubai usually required a minimum balance of at least AED 5,000 to be maintained. v) The Defendant’s evidence was that he had ploughed substantial funds into the property project to which the disputed guarantee relates (the ‘Project’) but it was wholly unclear whether the Defendant’s investment was now worthless. vi) A significant omission from the Defendant’s original evidence was a French property providing a small amount of income which he claimed to have overlooked.[16]The Defendant’s fourth witness statement responded in relation to the following principal matters: i) Overall the Defendant claimed that he had made a bad decision 15 years ago to invest in entrepreneurial enterprises rather than conventional markets. This, together with unexpected events such as the Covid pandemic, had led to the loss of essentially all of his assets. ii) An explanation as to why his ex-wife was entitled to the proceeds of all of the jointly-owned French properties. In summary, since the London property with his ex-partner was purchased while he was still married to his ex-wife, the relevant matrimonial property regime designated the new property as partly belonging to the ex-wife. As compensation for this, the ex-wife would in turn be entitled to receive all of the proceeds of the French properties. iii) An explicit assertion that he did not have any undisclosed bank accounts, or any other sources of income. iv) A statement of cash movements ‘overview’ from 2018 until 2026 which sought to explain what had happened to the c£6,400,000 in asset sales since 2016 (essentially loans to RiverRock, and failed investments such as the Project, a garage investment and legal costs, as well as living expenses). This was to meet the criticism made by the Claimant that he had not explained the destination of the funds from the assets sales. v) Other documentary evidence evidencing: the sale of the London Property; a consolidated cash flow statement for RiverRock for 2021, and the financial statement of the garage project for the year ended March 2020. vi) An assertion that the Maserati car was pledged in connection with the failed garage investment.[17]During the course of his oral submissions the Defendant also explained that he was not able to ask his children for financial assistance because he was not on good terms with them following the divorce from his ex-wife.[18]In oral submissions the Claimant, in addition to his procedural objections to the application, attacked the credibility and completeness of the Defendant’s evidence. He complained in particular that: the notion that the Defendant had no current sources of income in any of the places where he apparently continued to work was not to be believed; the dilution of the Defendant’s interest in RiverRock remained opaque and it was likely that he had received substantial consideration in return; the statement of cash movements ‘overview’ exhibited to the Defendant’s fourth statement was also highly unsatisfactory since it assumed that all of the Defendant’s investments had failed – it remained unclear why the Defendant had invested almost all his funds into RiverRock for no return and it also did not follow that the Project was worthless; the descriptions of what had happened regarding the London property were unclear and contradictory and overall the Defendant had not discharged the burden of showing that he had insufficient funds to make the ordered payment.
Discussion and determination
[19]I was not attracted to an argument which turned on the fact of the CE filing receipt showing a time of 16.03 as opposed to 15.59. I deal below with the relevant implications if indeed the application was only technically made after summary judgment had been automatically entered. First, I will consider the application to vary on its merits.[20]The leading case in relation to CPR 3.1(7) is Tibbles v SIG plc (trading as Asphaltic Roofing Supplies) [2012] EWCA Civ 518, in which Rix LJ summarised the earlier jurisprudence at [39]: i) Despite occasional references to a possible distinction between jurisdiction and discretion in the operation of CPR r 3.1(7), there is in all probability no line to be drawn between the two. The rule is apparently broad and unfettered but considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion. Whether that curtailment goes even further in the case of a final order does not arise in this appeal. 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. iii) It would be dangerous to treat the statement of these primary circumstances, originating with Patten J and approved in this court, as though it were a statute. That is not how jurisprudence operates, especially where there is a warning against the attempt at exhaustive definition. iv) Thus there is room for debate in any particular case as to whether and to what extent, in the context of principle (b) in (ii) above, misstatement may include omission as well as positive misstatement, or concern argument as distinct from facts. In my judgment, this debate is likely ultimately to be a matter for the exercise of discretion in the circumstances of each case. v) Similarly, questions may arise as to whether the misstatement (or omission) is conscious or unconscious; and whether the facts (or arguments) were known or unknown, knowable or unknowable. These, as it seems to me, are also factors going to discretion: but where the facts or arguments are known or ought to have been known as at the time of the original order, it is unlikely that the order can be revisited, and that must be still more strongly the case where the decision not to mention them is conscious or deliberate. vi) Edwards v Golding [2007] EWCA Civ 416is an example of the operation of the rule in a rather different circumstance, namely that of a manifest mistake on the part of the judge in the formulation of his order. It was plain in that case from the master’s judgment itself that he was seeking a disposition which would preserve the limitation point for future debate, but he did not realise that the form which his order took would not permit the realisation of his adjudicated and manifest intention. vii) The cases considered above suggest that the successful invocation of the rule is rare. Exceptional is a dangerous and sometimes misleading word: however, such is the interest of justice in the finality of a court’s orders that it ought normally to take something out of the ordinary to lead to variation or revocation of an order, especially in the absence of a change of circumstances in an interlocutory situation.[21]Although the Claimant attempted to cast doubt on the veracity of the Defendant’s account of his current financial position, it was accepted by the Claimant that the court is unlikely to be willing to make findings on disputed factual questions at this stage. I have no doubt that if the evidence which has now been developed and submitted by the Defendant had been before me when considering the Claimant’s application prior to the Ruling I would not have made the Conditional Order. In summary, by that evidence the Defendant has now provided a fairly comprehensive explanation (supported by statements of truth) as to his assets, income and liabilities and the deterioration of his financial position since the end of his banking career. The criticisms and concerns set out in the Ruling (summarised at paragraph 13 above) would not have been maintained in the face of such evidence, and the material now before me would have led me to find that the Defendant had discharged the burden of showing that he could not make a substantial payment into court.[22]The key question is therefore whether there has been a material change of circumstances or whether the application should be dismissed as an illegitimate attempt by the Defendant to have two bites of the cherry. The Claimant submitted that there had been no change of circumstances, and all of the material before me on the application to vary could have been adduced before the Conditional Order was made. This submission had some force but I was ultimately persuaded that my discretion to vary the Conditional Order should be exercised in the somewhat unusual circumstances of this case: i) The decision to vary the order is based on substantial additional evidence which was not before me when I made the Ruling and the Conditional Order. ii) In considering whether to vary an order under CPR 3.1(7) in my view it is relevant to consider the type of order that was made, and the circumstances that led up to it. iii) In this regard, I note that the application for a conditional order was only raised at the very end of the original summary judgment hearing, not having been included in the application notice or prefaced in the Claimant’s skeleton argument. A short timeframe was allowed after the hearing for the Claimant to make written submissions, the Defendant to respond, and the Claimant to reply. Accordingly (and importantly) the Defendant only had one opportunity to put in submissions and evidence, which on the original timetable had to be submitted within a week. Even with the extension of time, he had only around 2 weeks in which to gather the relevant evidence. iv) Furthermore, there was no formal step in the timetable for the Defendant to respond. This was an important factor in circumstances where, given the way the arguments developed, the Defendant was trying to prove a negative, namely that he did not have sufficient assets or income to make a payment into court. The parties’ cases were necessarily iterative in that the Claimant submitted in fairly general terms that this was an appropriate case for a conditional order, the Defendant responded that he did not have sufficient means to make a substantial payment and the Claimant criticised that evidence, having the last word. In order to avoid an order being made, the Defendant had to answer the Claimant’s arguments about potential assets and income, or flaws in the information provided, but the majority of these arguments were only developed by the Claimant in reply. v) Another important factor was the new (and detailed) evidence in the Defendant’s third statement about his attempts to raise substantial funds from banks and third parties following the making of the Conditional Order, supported by documentary evidence which evidenced that such calls or meetings had taken place. While in theory the Defendant could have tried to explore such avenues before the Conditional Order was made, it would have been very challenging to do so in the time available, and especially difficult to provide convincing evidence of inability to raise funds via these routes before the relevant amount of the payment was known. I found that evidence to be persuasive material, which was not available before I made the Ruling, that the Defendant will be unable to raise the necessary funds to comply with the Conditional Order. vi) In oral submissions the Defendant, who was representing himself, said that the new evidence was in some respects just an elaboration of what he had said before but he also made the point that it had taken a considerable amount of time to pull together and he was not sure that it would have been capable of being produced in time. Reviewing the totality of the evidence now before me, I agree that it now seems unlikely that it would have been possible to collate that evidence in the two weeks between receiving the Claimant’s submissions and the (extended) deadline. Nor can the Defendant and his then advisors have been confident of obtaining a yet further extension of time given that the deadline had already been changed once. In any event, as I have set out above, the further evidence about attempts to raise specific sums of money was indeed evidence which was not realistically capable of being adduced before the Conditional Order was made. vii) The failure to provide the information previously was not conscious or deliberate (c.f. Tibbles para 39(v) above). viii) It is also relevant to bear in mind the type of order that the Defendant is seeking to vary, and its implications. The effect of failing to comply with the condition would be that the Defendant be completely debarred from defending the claim against him, in circumstances where I have declined to find that his defence had no reasonable prospect of success. That is a very serious consequence, which bears on the exercise of discretion to vary the Conditional Order.[23]It is also relevant to consider whether the application to vary was made promptly (Tibbles para 42), and I therefore also bear in mind the fact that the application was made at the eleventh hour or possibly even very slightly beyond it. However in this regard the Defendant has given evidence that he was adversely affected, in preparing the application, by(i) the war in the Middle East since Iran started to make attacks on Dubai (where he is resident) very shortly after the Conditional Order was made; and(ii) the fact that he was struggling to raise funds to pay his solicitors in the period in between the making of the Conditional Order and the issuing of the application (his solicitors subsequently came off the record and he began acting for himself, in between the preparation of his third and fourth witness statements). It has also clearly taken some time to collate the necessary information and the various documents exhibited to the Defendant’s third statement (running to nearly 100 pages). For those reasons, I do not consider that the lateness of the application tips the balance against permitting the Conditional Order to be varied, in light of the other factors I have set out above.[24]Nor I do not consider that anything turns on whether the application to vary the Conditional Order was made by or after 16.00 on 13 April 2026.[25]If the application to vary was received by 16.00 then this is similar in effect to an in-time application for extension of time, in relation to which no relief from sanction would be necessary: White Book paragraph 3.9.11. The Claimant sensibly accepted that if the application to vary had been made before the deadline then this route could in theory have worked procedurally (subject to his submissions that this was not an appropriate case to vary the order because there were no new circumstances).[26]If, however, the application to vary was only made three minutes after the deadline had passed such that judgment had been automatically entered, then this would have been an obvious case for relief from such a sanction under CPR 3.9. It is no obstacle that the Defendant did not formally make such an application since the Court may consider an application raised informally at a hearing or even grant relief from sanctions of its own motion in an appropriate case (White Book para 3.9.17). The Claimant anticipated that the Court might treat the Defendant’s application as such, dealing with potential relief under CPR 3.9 in submissions.[27]Denton v TH White Ltd [2014] EWCA Civ 906 mandates the well-known three-stage test for relief from sanction, namely:(i) identify and assess the seriousness and significance of the breach of the relevant rule, practice direction or court order;(ii) consider the reasons why the default occurred; and(iii) evaluate “all the circumstances of the case”. In applications for relief from sanction for an unless order it is also relevant to consider the seriousness of the underlying breach with which the unless order is associated (see Oak Cash & Cary Limited v British Gas Trading [2016] EWCA Civ 153 at 40-42).[28]In the present case: i) If, as appears to be the case, the Defendant was late in making the application it was only by a few minutes. Accordingly, this would not have been a case of serious or significant breach and the application for relief would usually be granted (White Book notes at paragraph 3.9.4). ii) As regards the reasons why the default occurred, to the extent that the application to vary was made after the time for compliance with the unless order, I have explained above in paragraph 23 that the Defendant provided persuasive evidence of reasonable grounds for that lateness. iii) As regards “all the circumstances of the case” it is also relevant to consider the nature of the Conditional Order. Although expressed in ‘unless’ terms, the Conditional Order was not a conventional unless order in the sense of being a final response to a repeated or serious breach of another order. There was no other underlying breach by the Defendant to which the unless order attached. Rather the entry of judgment simply followed the failure to fulfil a condition imposed as part of the summary judgment process. Accordingly, this is not a case where the court’s patience has already been tried by repeated failures to comply with court-ordered deadlines. The Claimant has also not been prejudiced by the failure to make the application to vary before the deadline as opposed to three minutes afterwards,[29]Accordingly in all the circumstances I will grant the application to vary the Conditional Order and to replace the figure of £250,000 in paragraph 2 with £1000. I am satisfied from the evidence now provided that the Defendant has limited assets or other possible sources for a more substantial payment in but he is clearly able to raise that sum, given that this is the variation he seeks.