“the whole point of mortgaging the major assets (the boat, the art and the aircraft) to a suitably located bank is to make it infinitely harder for your Mother to enforce against them. Had your father gone ahead with ENBD, your Mother would have been forced to go through the UAE courts and Reed Smith say this would be practically impossible as the law stands. If she did make an attempt to do this the bank would say, “We have loaned against these assets, they are our security and no one can touch them”
“Please transfer all remaining cash from Avenger to Cotor UBSs account. Then to Cotor’s LGT account. !!!Not Avenger > Cotor LGT!!!”
“16. When judging a person’s intentions, we are generally more inclined to accept that an action was not done for the purpose of bringing about a particular consequence, even if the consequence was foreseen, if there is reason to believe that the consequence was something which the actor wished to avoid or at least had no wish to bring about…. By contrast, a consequence is more likely to be perceived as positively intended if there is reason to think that it is something which the actor desired. Thus, evidence that a person who has entered into a transaction at an undervalue foresaw that the result would be to put assets out of reach of creditors and desired that result might lead the court to infer that the transaction was entered into for that purpose. But such a conclusion is not a logical or legal necessity. It is a judgment which has to be based on an evaluation of all the relevant factors of the particular case.”
“After some hesitation I have concluded that the claimants are right on this point. Section 423 does not distinguish between companies and individuals. The first limb of the s 423 purpose - putting assets beyond the reach of a person who is making or may at some time make a claim against him - has inherent in it the assumption that following the transaction, the person does not have sufficient funds remaining with him to satisfy the actual or potential claim made against him. If a person or a company has plenty of assets left with which to meet the claim, then however many additional assets are gifted to people, he or it cannot have the s 423 purpose. This must be inherent in the wording of section 423(3)(a) and is confirmed by the second limb which refers to action “otherwise prejudicing the interests of” the claimant, implying that the transaction in the first limb must prejudice those interests too.”
“[12] I turn now to the appellant submissions. Mr Cadwallader, who appears for the appellant, submits that there was insufficient evidence on which the judge could find that Mr Ghauri was likely to be left with insufficient funds to discharge his tax liabilities. He also submits that it was necessary to find that Mr Ghauri thought about defrauding the Revenue positively. I can deal with that last point briefly. As I see it, it is sufficient if the court can draw the necessary inference as to the statutory purpose. [13] Mr Cadwallader submits that the evidence about assets was not comprehensive. I can deal with this point too at this stage. The answer to this point is that the judge had to do the best he could with the evidence available. It is accepted that Mr Ghauri’s assets included Shadwell Road and the bank accounts, but Mr Cadwallader says that the judge did not take into account the ongoing profit; that he clearly did so because he refers to the sums admitted in respect of under-declared profits in the period 1983 to 1989. On the liability side, it is accepted that the tax liabilities were£86.000 -odd at the date of the declaration of trust, to which there would have to be added penalties and interest, although we are told that the amount of penalties is a discretionary matter. Mr Cadwallader argues that the judge should have taken into account the lease of the property. He accepts, however, that the lease may have been merged into the freehold after it was acquired and that the judge was entitled to take that view. Certainly no rent was paid by Mr Ghauri after the date of the purchase. Mr Cadwallader also submits that the judge failed to take into account the value of the business. But the judge did take into account the prospect of future profits with, of course, their concomitant tax liabilities. It would be double counting if the judge also took into account the goodwill of the business. Mr Cadwallader submits that the judge should have taken into account 104 Burley Road, but in 1994 this was Karim’s property and the evidence did not show that Mr Ghauri had owned it in 1997.”
“[101]… Section 423(2) in conjunction with the definition of victim in section 423(5) makes prejudice or potential prejudice a condition for obtaining relief. That prejudice does not have to be achieved by the purpose with which the transaction was entered into. Nor in my judgment does the purpose have to be one which by itself is capable of achieving prejudice. What subsection (3) requires is that the purpose should be one which is to prejudice “the interests” of a claimant or prospective claimant. The “interests” of a person are wider than his rights…”
“[102] The next question is whether a person can be said to have the necessary purpose if he is completely mistaken as to whether entry into the transaction can have the effect of prejudicing a person’s interests. This question assumes a rather exceptional state of affairs where a person has the necessary purpose of putting assets beyond the reach of his creditors and wrongly thinks that if he enters into a transaction at an undervalue (e.g. gifts property to his wife) his creditor, B, will be prejudiced. If unbeknown to him his wife has agreed to pay the money is transferred to her to B, the purpose that he had in mind will not be achieved. If the creditor takes the benefit of the transaction solely for himself and refuses to share it out with other creditors, they will be persons who (arguably at least) are prejudiced by the transaction and can constitute victims within section 425(5). Another situation that might occur is where the debtor enters into a transaction knowing that his entry into that transaction, together with the happening of some other event, will prejudice a creditor. I consider that the court does not have to consider the relative causal effect of the two matters. If the transaction is entered into with the requisite purpose, the fact that some other event needs to occur does not mean that the transaction cannot itself be within section 423(3). I consider that this is what the judge meant by his test of whether the transaction was an essential part of the purpose (in which connection he applied his analogy with petrol and matches for a fire). I therefore do not accept Miss Newman’s submission that it is necessary to approach section 423 as if a test of causation were to be applied. The right approach in my judgment is to apply the statutory wording. It is enough if the transaction sought to be impugned was entered into with the requisite purpose. It is entry into the transaction, not the transaction itself, which has to have the necessary purpose.”
“The Claimants rely on the very particular circumstances of this case. AWA was a non-trading company and a wholly-owned subsidiary. Its only function was a containment vehicle for the Fox River liability. There is clear evidence that the purpose of the declaration of the May Dividend and the sale of AWA to TMW clearly was to remove from Sequana the risk that the Maris Policy plus the insurance proceeds might not be enough to meet the indemnity. Such evidence of the subjective intention of those in control of the company when making the decision to pay the dividend will distinguish this case from other cases where directors declared dividends for their shareholders for the usual reasons for which dividends are paid, without turning their minds to whether this leaves enough money for potential creditors. Here there is no doubt that the subjective intention of the directors at the time of the May Dividend and the sale was to prevent AWA having any legal or moral call upon its parent company to meet its creditors’ claims. After the declaration of the dividend and the sale to TMW, the creditors were prejudiced because the assets of AWA had been depleted and it no longer had any call on Sequana to that extent.”
“(1) For the purposes of this section “financial relief” means relief under any of the provisions of sections 22, 23, 24, 24B, 27, 31 (except subsection (6)) and 35 above, and any reference in this section to defeating a person’s claim for financial relief is a reference to preventing financial relief from being granted to that person, or to that person for the benefit of a child of the family, or reducing the amount of any financial relief which might be so granted, or frustrating or impeding the enforcement of any order which might be or has been made at his instance under any of those provisions. (2). Where proceedings for financial relief are brought by one person against another, the court may, on the application of the first-mentioned person – a). if it is satisfied that the other party to the proceedings is, with the intention of defeating the claim for financial relief, about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property, make such order as it thinks fit for restraining the other party from so doing or otherwise for protecting the claim; b). if it is satisfied that the other party has, with that intention, made a reviewable disposition and that if the disposition were set aside financial relief or different financial relief would be granted to the applicant, make an order setting aside the disposition; c). if it is satisfied, in a case where an order has been obtained under any of the provisions mentioned in subsection (1) above by the applicant against the other party, that the other party has, with that intention, made a reviewable disposition, make an order setting aside the disposition; and an application for the purposes of paragraph (b) above shall be made in the proceedings for the financial relief in question. (3). where the court makes an order under subsection (2)(b) or (c) above setting aside a disposition it shall give such consequential directions as it thinks fit for giving effect to the order (including directions requiring the making of any payments or the disposal of any property). (4). Any disposition made by the other party to the proceedings for financial relief in question (whether before or after the commencement of those proceedings) as is reviewable disposition for the purposes of subsection (2)(b) and (c) above unless it was made for valuable consideration (other than marriage) to a person who, at the time of the disposition, acted in relation to it in good faith and without notice of any intention on the part of the other party to defeat the applicant’s claim for financial relief. (5). Where an application is made under this section with respect to a disposition which took place less than three years before the date of the application or with respect to a disposition or other dealing with property which is about to take place and the court is satisfied – a). in a case falling within subsection (2)(a) or (b) above, that the disposition or other dealing would (apart from this section) have the consequence, or b). in a case falling within subsection (2)(c) above, that the disposition has had the consequence, of defeating the applicant’s claim for financial relief, it shall be presumed, unless the contrary is shown that the person who disposed of or is about to dispose of or deal with the property did so or, as the case may be, is about to do so, with the intention of defeating the applicant’s claim for financial relief. (6). In this section “disposition” does not include any provision contained in a will or codicil but, with that exception, includes any conveyance, assurance or gift of property of any description, whether made by instrument or otherwise. (7). This section does not apply to a disposition made before1st January 1968 .”
“[9] For W’s application to succeed the following has to be demonstrated: (i). That the execution of the [disposition] was done by H with the intention of defeating her claim for financial relief. This is presumed against H, and he has to show that he did not bear that intention… The motive does not have to be the dominant motive in the transaction; if it is a subsidiary (but material) motive then that will suffice… (ii). That the execution of the [disposition] had the consequence of defeating her claim. This means preventing relief being granted, or reducing the amount of any such relief, or frustrating or impeding the enforcement of any order awarding such relief… (iii). That the court should exercise its discretion to set aside the [disposition]. (iv). However, … there is an exception to the general rule that all dispositions are liable to be set aside. The disposition in favour of [the recipient] will not be set aside if it can be shown at the time it was made that, a). it was done for valuable consideration; and b). [the recipient] acted in relation to it in good faith; and c). [the recipient] was without notice of any intention on the part of H to defeat W’s claim for financial relief. [10]. The knowledge of [the recipient] referred to in paragraph [9](4)(c) above is not confined to actual knowledge but extends to constructive knowledge… [11]. Although there is a formal legal burden on W to demonstrate the negative of the matters referred to in paragraph [9](iv) above, I take the view that for obvious reasons (having to prove a negative; lack of knowledge) there is an evidential burden shifted to LF to establish this exception. If he does not establish all three limbs of the exception, then the defence will not arise.”
“27. It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind at all times that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, and distress. The fact that a witness has lied about some matters does not mean that he or she has lied about everything [R vLucas[1981] QB 720 ]. It is important to note that, in line with the principles outlined in R v Lucas, it is essential that the court weighs any lies told by a person against any evidence that points away from them having been responsible for harm to a child [H v City and Council of Swansea andOthers[2011] EWCA Civ 195 ]. 28. The family court should also take care to ensure that it does not rely upon the conclusion that an individual has lied on a material issue as direct proof of guilt but should rather adopt the approach of the criminal court, namely that a lie is capable of amounting to corroboration if it is (a) deliberate, (b) relates to a material issue, and (c) is motivated by a realisation of guilt and a fear of the truth [H-C (Children)[2016] EWCA Civ 136 at paragraphs 97-100]. 29. In this context, I have borne in mind the words of Jackson J (as he then was) in Lancashire County Council v The Children[2014] EWHC 3 (Fam) . At paragraph 9 of his judgment and having directed himself on the relevant law, he said this: ‘To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the accounts. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural - a process that might inelegantly be described as ‘storycreep’ - may occur without any necessary inference of bad faith.’”
“In the interests of justice and fairness, the trial should be adjourned so that the falsity of this new evidence and the circumstances in which it was obtained can be exposed for all to see”
“[44] In British Railways Board v Herrington[1972] AC877 , 930-931, Lord Diplock, dealing with the liability of a railway undertaking the injury suffered by trespassers on the line, said: “The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court to have any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold. A court may take judicial notice that railway lines are regularly patrolled by linesmen and Bangers. In the absence of evidence to the contrary, it is entitled to infer that one or more of them in the course of several weeks noticed what was plain for all to see. Anyone of common sense would realise the danger that the state of the fence so close to the live rail created for little children coming to the meadow to play. As the appellants elected to call none of the persons who patrolled the line there is nothing to rebut the inference that they did not lack common sense to realise the danger. A court is accordingly entitled to infer from the inaction of the appellants that one or more of their employees decided to allow the risk to continue of some child crossing the boundary and being injured or killed by the live rail rather than to incur the trivial trouble and expense of repairing the gap in the fence.”
“In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified.”
“Mr Kerman explained that [the Husband] was divorced and had four children. Three of the children are already adult; two live in the UK and one, in the USA. The youngest child is only four and lives with [the Husband] and his new wife. According to Mr Kerman, the four children would definitely not be suitable as protectors. Although [the Husband] divorced his now ex-wife in Russia, she nonetheless launched new divorce proceedings in England just a few months after [the Husband] became a billionaire through the sale of Northgas. The second set of divorce proceedings were launched after the Bermuda trust was set up.”
“Thus in considering whether there is a sufficient connection with this country the court will look at all the circumstances, including the residence and place of business of the defendant, his connection with the insolvent, the nature and purpose of the transaction being impugned, the nature and locality of the property involved, the circumstances in which the defendant became involved in the transaction or received a benefit from it or acquired the property in question, whether the defendant acted in good faith, and whether under any relevant foreign law the defendant acquired an unimpeachable title free from any claims even if the insolvent had been adjudged bankrupt or wound up locally. The importance to be attached to these factors will vary from case to case. By taking into account and weighing these and any other relevant circumstances, the court will ensure that it does not seek to exercise oppressively or unreasonably the very wide jurisdiction conferred by the sections.”
“70. It is important to note that these principles do not depend upon the nature of the claim or the nature of the loss suffered upon which the court in State A adjudicates. They are concerned with the location of the assets against which enforcement of that judgment is sought. It is, therefore, nothing to the point that the conduct of which the claimant complains occurred, or the losses which it suffered were incurred, in State A where the trial on liability takes place. Those matters may justify the exercise of personal jurisdiction over the defendant by the courts of State A if the defendant is resident elsewhere, but do not confer enforcement (or subject matter) jurisdiction on the courts of State A over assets located in other jurisdictions.”
“If the Tatiana problem did not exist, my Father would not move his asset anywhere…!! […] He wants to MOVE OUT OF SWITZERLAND … CUT HER BALLS OF[F] … GET DIVORCED … POST NUPTIAL AGREEMENT… And be a FREE MAN”
“All the reasons I gave you are excuses you could use to her lawyers/court”
“We should take all out and send her naxyj [ie fuck off]/ I will burn this moneys rather then will give her”
“… I still stick to the case that if my father wanted to put assets out of her reach, wouldn’t it have been much easier for me just to complete this purchase of Solyanka, have it under my name and my mother wouldn’t be able to take it”
“I remember that on you[r] 20 years anniversary what present (2.$) I have promised … This capital can be good start for you[r] own management experience!”
“Father says to move all ASAP”
“… I still stick to the case that if my father wanted to put assets out of her reach, wouldn’t it have been much easier for me just to complete this purchase of Solyanka, have it under my name and my mother wouldn’t be able to take it”
“… I did not see the Power of Attorney as being inconsistent or relevant in addition to the position I had stated in respect of Solyanka. Indeed I would have expected the claimant or anyone else reading the Defence to have assumed that if there were to be proceedings in Moscow (as I said there were) that I would conduct them through a notarised Power of Attorney, as that is the common custom in litigation in the Russian Federation, certainly for parties who reside abroad…”
“I can’t answer for Borderedge in its entirety. I’m a shareholder, yes, but I’m not an officer or director of the company, which I think the answer would bet[ter] from them, my Lady”
“We approach you in our capacity as the trustee of the Genus Trust. As you are aware, Counselor Trust reg. as the trustee of the Genus Trust has granted a loan to Borderedge Limited in the amount of EUR 27.500,021.38. The payment of the loan has already been effected by us on28 November 2016 . Please find attached two originals of the respective Loan Agreement. Could you please countersign both originals and send one of the countersigned originals back to us. The other original is for your further use. In case of any questions in relation to the Loan Agreement, please do not hesitate to contact us.”