BPE Solicitors Limited v Raj Kumar Ram [2025] EWHC 1065 (KB)

[2025] EWHC 1065 (KB)

Case No KB-2024-003383

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14/3/2025

Before

HIS HONOUR JUDGE AUERBACH

(Sitting as a Judge of the High Court)

Between

BPE SOLICITORS LIMITEDClaimant

RAJ KUMAR RAM (AKA RAJ RAM KALER, RAJ RAM AND RAJ KALER)Defendant

Hugh Jory KC and William Birch (instructed by Reynolds Porter Chamberlain) for Claimant

Mark Warwick KC (instructed by Gunnercooke LLP) for Defendant

Hearing Hearing dates: 11 and 14 March 2025

Approved Judgment

This judgment was handed down remotely on 2 nd May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

[1]On 19 February 2025 at a hearing of an application by the claimant without notice to the defendant, Griffiths J made a freezing injunction in respect of five properties of which the defendant is the registered owner. The matter came before Ellenbogen J on the return date of 25 February when William Birch of counsel appeared for the claimant and Mark Warwick KC for the defendant. Ellenbogen J continued the order made by Griffiths J as varied by her order; she adjourned the matter until 11 March 2025 and gave further directions.

[2]The matter came before me earlier this week on 11 March. Hugh Jory KC appeared for the claimant leading Mr Birch, the skeleton argument having been prepared by Lucy Colter of counsel, who had settled the particulars of claim, and Mr Birch. Mr Warwick KC appeared again for the defendant. Argument occupied a full day. I have reconvened the hearing today in order to give an oral decision.

[3]In brief summary the litigation background is this. Some years ago the defendant sold a property in Rochester, Kent, known as Cobb House, for £1.6 million to More Homes Bromley Limited, which I will call “MHB”. The claimant, which is a firm of solicitors, acted for MHB in that transaction. Contracts were exchanged on 21 November 2018 and the sale completed on 23 January 2019.

[4]The claim form in this action was issued on 19 November 2024. The brief details of claim asserted, in summary, that pursuant to a deed of assignment of 6 November 2024 MHB assigned its claims and causes of action against the defendant, now the subject of the present claim, to the claimant; and that the claimant is liable for fraudulent, alternatively negligent, misrepresentation, in respect of the sale of Cobb House, it having transpired that the property was subject to an undisclosed enforcement notice. Reference is also made to a further claim pursuant to the Civil Liability (Contribution) Act 1978 by reference to the claimant having paid a sum to MHB pursuant to a confidential settlement agreement in that connection.

[5]The particulars of claim give further details. They reveal that the sum paid in settlement by the claimant to MHB was £750,000. They refer to MHB having been made aware of a buildings regulations issue relating to refurbishment of the existing accommodation; and they set out questions and replies to enquiries which they say did not reveal, and should have revealed, the existence of the enforcement notice and indeed the appeal against it. They refer, in particular, to questions about: whether there were any planning proceedings, to which the answer was “no”; about any breach of statutory requirements, to which the answer was “none as far as the seller is aware”; about any notices, to which the answer was “none as far as the seller is aware”; and about disputes, to which the answer is “none as far as the seller is aware.” The particulars assert that the replies, at best, referred to building control issues, and assert that they could not have been construed as pointing to the fact of the planning permission enforcement issue.

[6]The particulars go on to recite that the property was subsequently sold at auction by the claimant for £463,750, although at one point the defendant had offered to rebuy the property for £600,000. Netting off the auction price, they claim loss on the purchase and subsequent sale of £1,136,250, loss of rent of a little more than £195,000 and other losses. They seek to recoup the full amount through either the principal claim and/or the contribution claim.

[7]The application notice for the freezing injunction was made on 19 February 2025, supported by a first affidavit of Richard Jack Seymour, the solicitor with conduct on behalf of the claimant. Griffiths J’s order restrained the defendant from disposing of five properties. They are: first, 145 Gordon Road, a residential property; secondly, 6 Goldsworth Drive, another residential property; thirdly, a property on the south side of George Summers Close, described as Kaler House – this is an office or business building formerly occupied by the defendant’s business company, Kaler Engineering Limited; fourthly, a residential property to the west of Goldsworth Drive known as 1 Kaler Mews – that is where the defendant currently lives with his wife and one of his sons and his family; and fifthly some land adjoining Cobb House but which was not part of the parcel when Cobb House was sold to MHB.

[8]As I have said, Griffiths J’s order was followed by the further order of Ellenbogen J. This included provision at paragraph 3 of her directions for:

“The defendant to lodge and serve (a) medical evidence from one or more suitable medical specialists setting out the current nature of his ill-health treatment (including the need for and planned date of surgical intervention) and prognosis and any effect which those matters are said to have on his ability to give instructions to his legal team in advance of and subsequent to the return date including with any necessary adjustment and the respects in which it is considered that any such adjustment would assist and (b) an affidavit or affirmation confirming the nature, current status and likely timescale for completion of each application which has been made by him or on his behalf to HM Land Registry in connection with each of the properties as at the date of his affidavit or affirmation.”

[9]The reason for those directions will become apparent later.

[10]Thereafter the defendant’s solicitors filed a witness statement from him of 1 March 2025 and one from Ravindra Kumar, the solicitor with conduct on his behalf, of 3 March 2025. The claimant’s solicitors filed a second statement of Mr Seymour of 5 March 2025. There is a good deal of documentary evidence exhibited to the various statements, or which I have otherwise been given, and to which I will be referring.

[11]The law relating to freezing injunctions has been considered in numerous authorities over the years. The principles are well settled, with a number of authorities reiterating and confirming the same points. I note the following points.

[12]First, the ultimate question for the court in deciding whether to grant a freezing injunction is always, in accordance with section 37 Supreme Court Act 1981, whether it is just and convenient to do so. See: Gloster LJ in Candy vHolyoake

[2017] EWCA Civ 92

; 3 WLR 1131 at [34]. The overarching test, however, has embedded within it two threshold tests. As Peter Gibson LJ put it in Thane Investments Limited and Tomlinson

[2003] EWCA Civ 1272

“It is clear on the authorities that what the court must be satisfied about before making such an order is that the applicant for the order has a good, arguable case, that there is a real risk that judgment would go unsatisfied by reason of the disposal by the defendant of his assets, unless he is restrained by the court from disposing of them, and that it would be just and convenient in all the circumstances to grant the freezing order.”

[13]Accordingly, the first threshold requirement for the grant of an injunction is that the claimant must have a good arguable case on the merits of the underlying claim. That means the same in this context as a serious issue to be tried: see the discussion in Dos Santos v Unitel SA

[2024] EWCA Civ 1109

, in particular the speeches of Sir Julian Flaux, the Chancellor, at [96] and Popplewell LJ at [122] and following. For reasons explained in those judgments, Popplewell LJ at [131] expressed a preference for the “serious issue to be tried” formulation to be used in this particular context as affording greater clarity.

[14]As Males LJ observed in Mex Group Worldwide Limited v Ford

[2014] EWCA Civ 959

(handed down shortly before the decision in Dos Santos) at [38] and [39], the test is not a demanding one. It may be passed notwithstanding that there are formidable arguments on the other side and a very real possibility that the claim will fail at trial.

[15]The second threshold requirement is, as Gloster LJ put it in Candy v Holyoake at [34]:

“There must be a real risk, judged objectively, that a future judgment would not be met because of unjustifiable dissipation of assets. But it is not every risk of a judgment being unsatisfied that can justify freezing order relief. Solid evidence will be required to support a conclusion that relief is justified, although precisely what this entails in any given case will necessarily vary according to the individual circumstances.”

[16]At [45] Gloster LJ said that the intrusiveness of relief will be a highly relevant factor when considering the overall justice and convenience of granting the proposed injunction.

[17]It is important to appreciate that what the court is concerned with when considering this threshold test is the existence or not of a risk of a judgment going unsatisfied. There must be a solid basis for concluding that the existence of the risk is real; but it does not have to be shown that the likelihood of the risk actually eventuating is itself more likely than not. See on this point the discussion in Les Ambassadeurs Club Ltd v Yu

[2021] EWCA Civ 1310

[2022] 4 WLR 1

at paragraphs [23] and following.

[18]Although the issue is highly fact sensitive and the court will decide it on all of the evidence before it, the burden is on the applicant to satisfy the risk threshold. Accordingly, only if the applicant for the order has raised evidence from which a real risk can be inferred will the respondent be expected to provide an explanation. In those circumstances, the lack of a satisfactory explanation may support an adverse inference. However, because the evidence must be looked at holistically, factors which individually might not require a response, might do so collectively. See Gloster LJ again in Candy at [50], [51] and [64].

[19]In Fundo Soberano de Angola v Dos Santos

[2018] EWHC 2199

, in the course of drawing the principles derived from previous authorities together, Popplewell J, as he then was, said at [86(4)-(6)]:

“(4) It is not enough to establish a sufficient risk of dissipation merely to establish a good arguable case that the defendant has been guilty of dishonesty; it is necessary to scrutinise the evidence to see whether the dishonesty in question points to the conclusion that assets are likely to be dissipated. It is also necessary to take account of whether there appear at the interlocutory stage to be properly arguable answers to the allegations of dishonesty. (5) The respondent’s former use of offshore structures is relevant but does not itself equate to a risk of dissipation. Businesses and individuals often use offshore structures as part of the normal and legitimate way in which they deal with their assets. Such legitimate reasons may properly include tax planning, privacy and the use of limited liability structures. (6) What must be threatened is unjustified dissipation. The purpose of a freezing order is not to provide the claimant with security; it is to restrain a defendant from evading justice by disposing of, or concealing, assets otherwise than in the normal course of business in a way which will have the effect of making it judgment proof. A freezing order is not intended to stop a corporate defendant from dealing with its assets in the normal course of its business. Similarly, it is not intended to constrain an individual defendant from conducting his personal affairs in the way he has always conducted them, providing of course that such conduct is legitimate. If the defendant is not threatening to change the existing way of handling their assets, it will not be sufficient to show that such continued conduct would prejudice the claimant’s ability to enforce a judgment. That would be contrary to the purpose of the freezing order jurisdiction because it would require defendants to change their legitimate behaviour in order to provide preferential security for the claim which the claimant would not otherwise enjoy.”

[20]In Lakatamia Shipping Co Limited v Morimoto

[2019] EWCA Civ 2203

, Haddon-Cave LJ at [34] adopted Popplewell J’s summary with the amendment of (4) to replace the words “likely to be” with “may be”. As to the potential wider significance to the risk issue of the existence of a good arguable case of the underlying claim, Haddon-Cave LJ in Lakatamia said, at [51]:

“In my view, in the light of the authorities which I consider in detail below, the correct approach in law should be formulated in the following two propositions: (1) Where the court accepts that there is a good arguable case that a respondent engaged in wrongdoing against the applicant relevant to the issue of dissipation, that holding will point powerfully in favour of a risk of dissipation. (2) In such circumstances, it may not be necessary to adduce any significant further evidence in support of a real risk of dissipation; but each case will depend upon its own particular facts and evidence.”

[21]For good measure, I note that Haddon-Cave LJ’s summary of the relevant principles was adopted by Males LJ in Mex Group Worldwide at [61] to [63].

[22]I note also these observations of Popplewell LJ in Dos Santos v Unitel at [130]. “Nor can I see any logic in seeking to control the grant of freezing orders through a heightened merits test as a gateway. Rather, the invasive nature of the relief should be taken into account in considering the other aspects of the test which are required to be fulfilled; in the safeguards built in to the wording of the orders in the form of exceptions; and in the application of the cross-undertaking in damages. I understand the concern that freezing orders should not be granted too readily, and fully endorse the proposition that care should be taken to ensure that they do not operate unfairly. It is always necessary to give anxious scrutiny not only to the second limb of the test, real risk of dissipation, but also to the third, whether it is just and convenient to make the order. Although this has been expressed as the third limb of the test, it is ultimately the whole test expressed in s. 37 Senior Courts Act 1981, and should be considered in every case, having regard among other things to the effect of granting, or not granting, the order.”

[23]I need now to consider in more detail the relevant chronology of events in this case. I keep in mind that some matters asserted on either side are factually contentious, including the significance of some documents; and I note that the defendant has yet to file his defence. However, there are other matters that are not factually disputed as such and are reflected in undisputed documents as far as they go.

[24]The particulars of claim assert, as I have indicated, that on 4 July 2018 Medway Council issued an enforcement notice regarding the conversion of Cobb House from 4 into 10 flats. On 2 August 2018 the defendant, together with a Mr R Wickham, appealed that notice. I have already noted that contracts were exchanged for the sale to MHB on 21 November that year and the sale completed on 23 January 2019. I have already set out what the particulars of claim say were the particularly pertinent questions in preliminary enquiries and the answers received, in the light of the surrounding communications. I keep in mind that the defendant’s side of that aspect of the story has yet to be set out.

[25]The particulars of claim assert that the defendant and his colleague continue to conduct the appeal from the enforcement notice post-completion, and that MHB did not know of the existence of the notice or the ongoing appeal until they learned of them in around October 2019. The defendant says that MHB took over conduct of the appeal from around that time. There is indeed a document dated 30 October 2019 giving MHB authority to conduct the appeal going forward, in exchange for an indemnity against any claims by the planning authority arising from the appeal. As I have noted, the claimant says that the appeal was unsuccessful and that it ultimately sold the property at auction for a considerable loss; and that at one point in 2021 the defendant had offered to buy it back for £600,000.

[26]The particulars of claim assert that an assignment, from MHB to the claimant, of MHB’s claims and causes of action against the defendant in relation to Cobb House, was completed on 6 November 2024. It appears not to be disputed that the defendant received a notice of 13 November 2024 from the claimant’s solicitors, RPC, referring to there having been an assignment of MHB’s equitable right to its potential claim or claims and cause or causes of action against the defendant regarding the sale of Cobb House. The defendant says that, prior to that, he had not had any intimation of a possible claim arising from that sale.

[27]Proceedings in the present claim were, as I have said, issued on 19 November 2024; but they were not immediately served on the defendant.

[28]On 23 January 2025 DGB Solicitors wrote to the defendant. They recorded that he had instructed them that he wished to transfer, as a gift, a 75% share of 1 Kaler Mews to his wife. They wrote:

“You have instructed that you are due to have an operation and therefore are looking to get your affairs in order. You advise that you would have liked to have done this previously but are now in a position to do so.”

Further on, they wrote, “You instructed me you decided on this gift to protect Krishna should you pass away.” They went on to give advice as to the ramifications of such a transaction and to advise as to their costs, for which payment on account was required.

[29]On 29 January 2025 the defendant booked a trip to India with his wife from 2 to 9 March.

[30]On 5 February 2025 RPC emailed the defendant a letter dated 4 February 2025, a hard copy of which was also delivered on 7 February. That referred to their earlier letter giving notice of assignment. It went on to inform the defendant that on 19 November their client had issued a claim for fraudulent or alternatively negligent misrepresentation and a contribution claim and that they were seeking £1.12 million plus interest and costs. They attached draft particulars of claim. In a further section headed “action required” they wrote:

“Please also confirm that you will actively take steps to preserve any assets in your name, including the various properties and businesses that you own. As to the three properties that we know are in your name, we enclose three standard form RX1s for you and/or your solicitor to sign and complete which will put this firm on notice of any dealings you may have with them. Registration of those notices will be entirely without prejudice to your position in response to the claim. If you do not agree please fully explain why. In the absence of any agreement or confirmation in that regard we anticipate receiving further instructions to file an urgent application for an injunction and/or order preventing the disposal of your assets.”

[31]The attached paperwork related to the three residential properties to which I have referred. They allowed until 18 February 2025 for a response. There appears to be no dispute that the defendant did receive and see that letter.

[32]On 11 February 2025 DGB Solicitors made an application to HM Land Registry in respect of 1 Kaler Mews. Having set up an alerter, RPC received notice of this on 12 February 2025, but this only told them that the application type was “dealing”, not what the specific transaction was. According to Mr Seymour RPC telephone DGB that day, who indicated that they were unaware of any litigation. In an email referring to that conversation, Mr Seymour sent DGB copies of the papers that had been sent to the defendant the previous week and pressed for an explanation of the application of 11 February by the end of the day, failing which they would take instructions to make an urgent application for a freezing order.

[33]On 13 February 2025 RPC emailed DGB again, asking for urgent confirmation that their firm would desist from dealing with the defendant’s assets with immediate effect; and indicating that they were proceeding to court.

[34]On 14 February 2025 DGB wrote to the defendant:

“Further to our telephone conversations today on 12 February 2025, I have now received from Reynolds Porter Chamberlain LLP the letter sent to you on 4 February 2025 and proposed particulars of claim on behalf of BPE Solicitors LLP. The contents of the letter provide allegations of fraudulent representations relating to the sale of Cobb House, 20-22 Hillside Avenue, Strood, Rochester, Kent, ME2 3DB. The letter is also requesting restrictions be placed over Kaler Mews, 6 Goldsworth Drive and 145 Gordon Road. These restrictions would prevent the registration of any transfer and the indication from the letter is that in transferring the properties it would be deemed a fraudulent reduction in assets. Albeit that these are only allegations and you have instructed that these transfers should have taken place many years ago due to your health circumstances at the time, professionally I cannot, at this stage, accept your instructions to transfer your properties. I may be able to help you in the future once the claim has concluded. Having completed the transfer on 1 Kaler Mews I am currently holding a balance of £20 for 145 Gordon Road and 6 Goldsworth Drive. I currently have outstanding Land Registry fees of £33.60. I intend to use the £20 from 1 Kaler Mews to reduce that fee to £13.60. On that basis I have time costed the work I have undertaken and I enclose my bill of costs and aborted statement of fees for 6 Goldsworth Drive and 145 Gordon Road.”

[35]On 14 February 2025 gunnercooke, solicitors confirmed that they had been instructed by the defendant in relation to this litigation. On 17 February RPC sent them documents referred to in the particulars of claim. On 19 February gunnercooke complained that not all such documents had been provided, and invited RPC to agree to a stay until they were. RPC replied that they had not addressed the points raised in respect of the HMLR application. Further documents were served later that day.

[36]Also on 19 February 2025 the hearing before Griffiths J took place. The application notice and his order were served the next day and the return date advised. At the same time RPC asked for urgent confirmation of the status and purpose of the HMRC application. In further correspondence on 21 February RPC indicated that they were unable to consider a stay “until all of our outstanding questions on dissipation of assets have been answered.” In a reply, gunnercooke indicated that their client was unfortunately in A&E. RPC responded expressing sympathy and offering to postpone the return date, but also asking whether gunnercooke had instructions regarding the HMRC application.

[37]In the course of an email on 24 February 2025 gunnercooke emailed that their client “is scheduled to undergo major surgery in a few weeks, expected to last more than 24 hours. Understandably he is anxious about the outcome, and the stress from this claim has adversely affected his blood pressure, potentially delaying the surgery if his condition remains unstable.” Regarding HMRC they wrote:

“We are in the process of obtaining full instructions on this matter. Our client has nothing to hide and once we have a complete picture and the relevant documents, we will revert accordingly.”

[38]In a reply RPC indicated they were prepared to adjourn the return hearing subject, in particular, to being informed of the purpose and status of the HMLR application. They sent a further email expressing concern that a further search indicated that the application was still alive and had been expedited. In response, gunnercooke disagreed with that and said that the application, as the latest entry showed, had been delayed; and that any requisitions had been sent by DGB, who were no longer instructed. On 24 February gunnercooke sent RPC a copy of the DGB Solicitors letter to the defendant, to which I have already referred, and which revealed the purpose of the HMRC application.

[39]On 25 February 2025 the hearing before Ellenbogen J took place and her order was made.

[40]On 10 March 2025 HM Land Registry notified RPC that gunnercooke had asked for the application in respect of 1 Kaler Mews not to be progressed. They attached a copy of the TR1 transfer form which was dated 7 February 2025.

[41]In his witness statement the defendant gives a detailed account of the serious ill health he has experienced over the past decade. He had urgent surgery in 2015 followed by a number of further serious surgical procedures in 2016, 2017 and 2018. In 2021 he was involved in a car accident which took a toll on his mental health. He put on weight. He was advised in 2022 that he needed further major surgery, but he has still not had it. His CeDAR from surgery has been identified as 47%, which is why he must lose weight before having it. Weight loss injections are now being considered.

[42]Mr Jory KC made it clear to me that the claimant does not dispute this medical history of serious illness and past surgical procedures described by the defendant. However, what the claimant does dispute is that he was, in January 2025, scheduled to have his operation imminently. I will return later to the evidence in that regard.

[43]I turn then to the question of whether the claimant has shown that there is a serious issue to be tried in relation to the underlying claim. Mr Warwick KC told me that he did not, in terms, submit that this element of the overall test was not satisfied. Given the low legal threshold one could, as he put it, tick the box for this element. However, he stressed that there was no admission in respect of the subsequent claim, nor expectation that the defendant will, at trial, be found liable. He highlighted three points.

[44]First, contrary to the claimant’s case, Cobb House was not converted from 4 to 10 units on the defendant’s watch. He referred to the evidence of an email from a planning consultant to the defendant in 2019 in that regard. Secondly, the defendant’s case is that he was not well served by the solicitor who acted for him on the sale of Cobb House: Rajinder Heer of CoventGate Law Limited. I was referred to documents in the bundle which show that the firm had ceased to practice in 2021 and lost its licence in 2022 and in 2024 Mr Heer was struck off. Mr Warwick KC stressed that the defendant will most strenuously dispute the claim of fraud against him. Thirdly, Mr Warwick KC noted that question 8.1 in the answers to preliminary enquiries had been answered “yes”; but he suggested that it appeared that the claimant, on behalf of its client, had failed to follow this up. This was a question and answer which, he contended, could be construed as flagging a planning issue.

[45]I am indeed satisfied that there is a serious issue to be tried. This is, in summary, for three reasons. First, the substance of the claim does not turn on whether the property was converted into 10 units before or after the defendant purchased it. Rather it turns on the fact, which does not appear to be disputed, as such, that in point of time prior to exchange of contracts and completion, an enforcement notice had been issued, and an appeal against that notice was under way. The claimant relies on that fact, together with the replies to enquiries. Secondly, there is a serious issue to be tried in respect of those replies being, in some cases, at least misleading or, in other cases, simply false. Thirdly, while I appreciate that Mr Warwick KC has flagged up that there are likely to be issues at trial as to how these replies to enquiries came to be given in the form that they were, the claimant’s case is plainly that such replies are given on the basis that they accurately reflect the position of the vendor.

[46]I turn then to the central area of contention before me, being whether, if I do not continue the freezing injunction, there is a risk of unjustified dissipation of these properties. Mindful of Popplewell LJ’s observations in Dos Santos, I have given the evidence on this aspect close and anxious consideration.

[47]In summary, the claimant relies on the following matters as solid evidence supporting the conclusion that such a risk exists. First it relies upon the fact that, in point of time after he received the notice of assignment, the defendant instructed DGB to transfer 75% of his interest in 1 Kaler Mews to his wife; and on 11 February 2025 an application was made to register such a transfer. Further, at some point before 14 February 2025, the defendant also instructed DGB to transfer 145 Gordon Road and 6 Goldsworth Drive to his two sons. In all cases this was for nil consideration. Mr Jory KC submits that this is undisputed evidence of an intention to dissipate these assets, as such; and that the timing relative to the defendant being informed of the assignment and, later, the details of claim, is highly significant.

[48]Secondly, the claimant relies upon the fact that Kaler Engineering Limited applied on 22 January 2025 for an extension of time to file its accounts, filed those accounts the next day and was then placed into administration on 27 January 2025. Mr Jory KC referred to a statement of affairs filed on 27 February 2025 showing assets of approximately £100,000 and liabilities exceeding £1 million. He submitted that the position, as at the date of those accounts and statements, compared with a year before, shows a dramatic fall in the company’s cash position, at least calling for some explanation.

[49]Thirdly, the claimant relies upon the fact that, following RPC’s letter and email sent on 5 February 2025, the defendant did not give the assurances sought, nor provide the signed forms RX1 for the three properties. Further, in response to enquiries after RPC had been alerted to the HMRC application, DGB indicated that it had no instructions to disclose the purpose of that application; and it was only after repeated requests to gunnercooke that on 24February 2025 RPC were shown that the application had been for registration of the transfer of 75% to the claimant’s wife.

[50]In response, the defendant’s case, in summary, is that the reason he took steps to transfer his interests in the three residential properties was unconnected with any fear or threat of a claim from the claimant, and his actions were legitimate and justified. He acted because he wished to put his affairs in order prior to undergoing an imminent very serious operation, which he had been advised there was a substantial risk he would not survive. He says that in all three cases he had intended to effect these transfers some years before, but had been let down repeatedly by his former solicitors.

[51]In relation to 145 Gordon Road the defendant says that in around 2012 or 2013 his son, Hiran, began lending him money to clear mortgage arrears, which, as his health and finances declined, he was unable to repay. Ultimately the mortgage was paid off in around 2018 using funds from Hiran, on the understanding that the property would be transferred to him. The defendant instructed CoventGate Law to effect the transfer. He thought it had been done, but it had not. He no longer receives the rental income, which is received by his son. In relation to 6 Goldsworth Drive the defendant says that another son, Jitender, lent him money to clear mortgage arrears when repossession was threatened. He agreed to transfer the property to Jitender. CoventGate Law were instructed and a transfer document was completed in 2023; but once again this was not put into effect. The defendant says that he discovered that neither of these properties had been transferred to his respective sons, when working with DGB on another transaction in around September 2024.

[52]In relation to 1 Kaler Mews the Defendant says that Vyman Solicitors were instructed to transfer that property to his wife in 2012, at a time when they were dealing with the transfer of other properties to his brothers. However, they failed to do so. In 2018 he instructed CoventGate Law to deal with this, but they also did not do so. He also refers to making his will in 2016 using another firm, leaving everything to his wife. He instructed DGB, he says, in January 2025 to transfer 75% of this property to his wife.

[53]In reply, in summary, the claimant says that the evidence in relation to a longstanding intention to transfer these properties is, at best, very thin. There is a lack of supporting documentation and it is implausible that the defendant was let down multiple times by more than one firm of solicitors and that neither he nor his respective family members realised that none of these transfers had been completed. Mr Jory KC also submits that, even if the defendant’s general case as to having historically wished to transfer these properties is accepted, he cannot be said by the these intended disposals in 2025 to be conducting his personal affairs in the way he has always conducted them. Nor would that explain the particular timing of his actions in 2025. As to that timing, the defendant relies upon his operation being scheduled to take place imminently. But, submitted Mr Jory KC, the medical evidence shows that simply to be false. Rather, it shows that no date for his operation has ever been set, because it cannot take place unless or until his weight falls sufficiently. Mr Jory KC invites me to conclude that the defendant has simply lied in the picture he has painted in this regard; and that this is all of a piece with what the claimant says was his dishonesty in relation to the enforcement notice and appeal relating to Cobb House.

[54]In evaluating the material before me, I keep in mind that the defendant and his current solicitors have had a relatively limited period of time to investigate and assemble evidence in this case, including in relation to events going back some years, and not all of which will have been in his immediate possession. I do recognise his health issues and indeed Ellenbogen J’s order raised the issue of adjustments for him. I should therefore note that the defendant was in court earlier this week and is again today; and that Mr Warwick KC confirmed, when I asked at the start of the hearing earlier this week, that he was not seeking for this matter to be further put off on account of his client’s ill-health.

[55]I start by observing that a striking feature of this case is that there is clear and undisputed evidence that the defendant has recently sought to divest himself of his major of entire interest in three properties for no consideration. That amounts to attempted dissipation of those assets as such. The instructions in relation to 1 Kaler Mews were, on the defendant’s own case, given in January 2025, which is, in point of time, after he was given notice of the assignment of MHB’s potential claims or causes of action against him arising from the Cobb House sale. While that notice did not give any further particulars, on his own case the defendant knew about the enforcement notice and the appeal, and the serving of the notice of assignment raised at least the spectre that it might be the precursor to an actual claim.

[56]That said, I note that it was only in the new year, some weeks later, that the defendant gave instructions to DGB. However, the documentary evidence also shows that the TR1 form in respect of that property was executed at DGB’s offices. It was dated on 7 February 2025 and the application to register it was made on 11 February 2025. That was, in point of time, after the defendant had received the material relating to the claim that was emailed on 5 February 2025, including the request to confirm that he would not dispose of any assets and to return form RX1s and the warning that in the absence of a positive response an urgent injunction application might be made. The evidence suggests that the defendant did not ask DGB to put the transfer on hold, nor make them aware of that letter at all at that point.

[57]As to the instructions in relation to 6 Goldsworth Drive and 145 Gordon Road, the defendant says in his statement that in both cases he met with DGB “prior to 23 January 2025” to correct the position. However, the DGB letter of 23 January 2025 does not refer to those two properties, but only to 1 Kaler Mews. I was told that there are other letters, but I have not seen them. What is clear from the DGB letter of 14 February 2025 is that instructions had, by that date, been given in relation to those two properties as well. That date is, in point of time, not only after the notice of assignment was served but after the draft particulars of claim were served. That letter also refers to the transfer of 1 Kaler Mews but only to instructions in relation to the other two properties. Further it indicates that DGB were holding a small surplus of funds for 1 Kaler Mews, but were owed money in relation to their abortive work on the other two matters, for which they enclosed bills.

[58]The picture painted by this documentary evidence is that DGB were not instructed in relation to those two properties at the same time as in relation to 1 Kaler Mews, but some time after 23 January, and at a point such that, as of 14 February they had not yet got to the point of transfers for them having been completed. As I have noted, the 14 February letter also suggests that DGB Solicitors first learned of the threatened injunction proceedings only from RPC on 12 February.

[59]As a starting point, all of that is documentary evidence which would, by itself, potentially support an inference that there was an attempt by the defendant to effect what would amount to unjustified dissipation of property assets, supporting the conclusion that there is a real risk that he will do so if he does not continue to be restrained by the court.

[60]I agree with gunnercooke’s observation in the correspondence that the HMLR search result from 24 February does not show that expedition of the 1 Kaler Mews application had been requested on 21 February 2025. Rather, it shows that it was delayed as a result of a requisition made around that date, although its status hitherto had been expedited. However, I see some force in Mr Jory KC’s submission as to the slowness of the response to RPC’s enquiries about the transaction that they had learned about on 12 February. It is clear that DGB were not able to act for the defendant in relation to litigation, and I also accept that gunnercooke, once instructed, needed some opportunity to get clear instructions and relevant documents. But RPC’s question was not answered until 24 February, the day before the last return date. It is not clear to me why they could not have been enabled by their client to respond sooner than that. Though not essential to it, this aspect supports my conclusion that there is an evidential case for the defendant to answer, on the issue of risk of unjustified dissipation.

[61]I have not, however, placed any weight on the material relating to Kaler Engineering Limited. I understand the claimant’s point about the dramatic change in the cash position, and I note that the defendant’s evidence does not engage with this specific aspect. But his general evidence is that his health problems in recent years have affected his business; and I do not consider that the bald figures are a sufficient basis for me to draw an adverse inference against him relevant to what I have to decide today.

[62]I turn to consider the defendant’s explanation for his conduct in relation to the three properties in relation to which he sought to give away some or all of his interest. First, I consider the documentary evidence that he relies upon as to his historic efforts to effect such transfers. In relation to 1 Kaler Road he points to evidence that Vyman Solicitors conducted searches on behalf of his wife in 2022. But what I have in my bundle are multiple searches conducted by them at that time, it appears, in the names of the defendant, his wife and apparently other family members. It is not clear why. One might speculate that they were seeking to ascertain who actually owned it. But putting aside speculation, what I do not have is any clear evidence of an intention or attempt to transfer the property, or a share in it, to the defendant’s wife; nor as to why any such attempt, if made, would not have been successful.

[63]In relation to 145 Gordon Road, there is evidence that Lloyds Bank started possession proceedings in 2018. There is no documentary evidence of sums being advanced by Hiran, but plainly Lloyds Bank did not acquire the property. I note that the defendant says that Hiran now receives the rent though, again, there is no documentary evidence of that. There is also no direct evidence of any attempted transfer to Hiran or as to why, if attempted, that might not have been successfully implemented.

[64]In relation to 6 Goldsworth Drive, there is documentary evidence of a possession claim in 2016, but not of any sums paid by Jitender. There is, however, evidence of paperwork being completed, taking it at face value, in relation to a transfer to Jitender in 2023, and in the preparation of which Mr Heer appears to have had some role. But clearly no transfer was effected then or at any time. I am prepared to accept that the defendant considers Jitender has some claim in respect of this property, but cannot draw any firmer conclusion than that.

[65]Even assuming that the defendant has, at times in the past, wished or intended to make transfers in respect of one or more of these three properties to family members, that does not, by itself, assist in explaining the timing of the instructions to DGB. In his witness statement he says that he found out when working with DGB on another matter in September 2024, that two of the properties had not been transferred; however, that would not explain why he only instructed DGB in relation to 1 Kaler Mews in January 2025. Further, even on his own account, he only says he instructed them in relation to the other two properties before 23 January; and, as I have described, such documentary evidence as I have suggests that it was, in fact, rather later than that.

[66]The defendant’s explanation for the particular timing of the instructions is what he says was his then impending operation. I turn, then, to the medical evidence in that regard. It is apparent from letters of October 2022 and February 2024 that the defendant had been advised that in order to have the proposed operation he needed to reduce his BMI. In October 2022 it was 38 and his CeDAR risk from the operation was 47%. The MDT had recommended he get his BMI down to 35. As of February 2024 it was 39. He was to be seen in six months’ time. In August 2024, following a knee injury, his weight had gone up. He was to be reviewed in three months’ time. In November 2024 his BMI was 39.5. The consultant’s letter indicated that the hospital might soon be able to consider weight loss injections but this was still to be approved. In the meantime the defendant was going to see his GP to see if he could get injections sooner. The letter concluded by referring to a requirement to get his BMI below 35 “so that you can have this operation which you believe will change your quality of life.” No further review date was set.

[67]An email from the hospital on 24 February 2025, in response to a telephone call from the defendant, provided copies of the earlier review letters, referred to speaking to the consultant with a view to arranging an appointment for the defendant to see him in clinic and “hopefully we can then move forward with a plan for surgery.” The contents suggests that this proactivity was a response to a request from him at that time.

[68]At the hearing before me, a further letter of 10 March 2025 from the defendant’s consultant was produced. This reiterates that he has to lose a significant amount of weight before he can have the operation; it adds that “whether we make it to that point, as significant weight loss is needed, is unclear. Not having an operation does not put his life at risk. However, it does impact on his daily life. Should he need to have any emergency operations on his abdomen in the future, this would be extremely challenging.” It concludes that they will only arrange to see him again once he has met his weight loss target. “Given the difficulty of the operation and the potential risks, it would be acceptable to leave it alone and manage things non-operatively.”

[69]What this evidence shows, is that the consultant’s consistent position has been that, because of the risk it entails, they will not perform the operation unless or until the defendant’s weight falls sufficiently; because it has not yet done so no date has ever been set for the operation. It is not regarded as life-threatening not to have the operation, as such. When the defendant last saw the consultant in November 2024 no date for a review was set. That remained the position through January and into February 2025 up until at least 24 February, when the defendant spoke to the hospital.

[70]The defendant’s witness statement states that at the consultation in November he was told that it was “likely that I would have the operation in March or April 2025, as always subject to my health and surgeon’s availability.” He states that in January he booked his March trip to India to visit holy places, pray and seek blessings for his good health “knowing surgery was imminent.” He refers repeatedly in his statement to his “imminent” operation and says that he has been trying to get his affairs in order in advance of it. He says that there is “simply no link between the timing of the steps which I am making in the best interests of my family and the notification of BPE’s alleged claims.”

[71]I have reflected on that evidence in light of the documentary evidence. I entirely accept that the defendant is, and has been for many years, anxious about his general state of health. I accept that he is fearful about how the operation will go if or when he ever does have it. I accept that his purpose in going to India may have been spiritual and to offer prayers for his good health. But whatever scenarios may have been discussed in the consultation last November, it is clear that, because his weight had still not improved, no date was set for an operation, nor even for any further consultation at that point. The ball was effectively left in his court. That position did not change in December or January.

[72]What the defendant’s witness statement stated, and what his solicitors wrote they understood from him, as reflected in their email of 24 February 2025, was to the effect that the defendant was at least expected and on course to have his operation, on a date to be confirmed in March or April, as it were, barring some upset. In a different context that might be taken to be an expression of extreme wishful thinking or reckless optimism on his part. But in the present context, where this scenario was advanced as the very hinge of the explanation for the conduct at issue, a feature indeed highlighted by the terms of paragraph 3 of the order of Ellenbogen J, this was a material misrepresentation by the defendant.

[73]Standing back and considering the totality of the evidence, I am not persuaded that the timing of the defendant’s actions in instructing DRG to take steps in relation to the transfer of some or all of his interest in these three properties is explained, whether wholly or mainly, by his desire to put his affairs in order prior to an imminent potentially life-threatening operation, as opposed to being connected with the communications from RPC in November and/or February and the prospect of a claim against him arising from the sale of Cobb House. I conclude that these instructions related to what would have been an unjustified dissipation of the defendant’s property, and that there is a real risk that if the injunction is not continued he will engage in such unjustified dissipation in the future.

[74]I have not, in reaching this conclusion, attached any weight to the allegations of dishonesty in the particulars of claim. While they are, in the broadest sense, also property-related, the particular scenario which they involve is different; and while they undoubtedly raise a serious case to be tried, they are plainly disputed, and the matter has not even yet reached the stage of a defence being filed.

[75]I turn to the question of whether it is just and convenient to grant the relief sought, and, relatedly, whether in relation to all five properties. In particular Mr Warwick KC submitted that if, contrary to his primary position, I was, in principle, minded to grant some relief, then, having regard to the potential value of the claim, and the evidence I have as to the respective values of the five properties, I should continue the injunction only in relation to Kaler House.

[76]I am mindful, as the authorities reiterate, that a freezing injunction is a severe and intrusive form of relief. It will prevent the defendant from disposing of the property or properties concerned unless or until trial, which may be some way off, or the court is otherwise sooner persuaded to vary the injunction. He will be in contempt if he does so. The fact that he could seek a variation if he believed that circumstances supported it, should not be regarded as diminishing the impact of such an injunction.

[77]However, there is no suggestion that the defendant has any current wish or need to dispose of any of these properties, other than his wish to give away his interests in three of them to family members. He has already made a will leaving his whole estate to his wife. While there may be potential inheritance tax advantages to lifetime dispositions, the claimant is continuing to offer an insurance-backed cross-undertaking in respect of any financial loss. No suggestion has been made that a transfer is necessary to the actual living arrangements of any family member.

[78]The defendant states that the proceedings are causing him stress and distress and that this would be exacerbated by the continuation of the injunction. I accept that, and that, whilst litigation is ordinarily, for most people, very stressful, in his case it comes against the backcloth of poor existing health; but I do not have medical evidence before me such as would enable me to regard that as a significant factor pointing against relief being granted. In principle therefore I conclude that the injunction should be continued in some form at this point.

[79]I turn to whether it should continue to extend to all five of the properties. The claimant claims that it has incurred a net loss of £1,136,000 by reference to what it bought and sold Cobb House for, together with loss of rent at around £195,000 and other consequential losses. That assessment depends on it succeeding in both limbs of its claim, including with regard to recouping a full contribution in respect of what it paid in settlement to MHB. The defendant raises a number of points of contention about these figures. But these will all be issues for trial; and I am not in a position to say that the claimant’s approach is, in any particular respect, obviously misconceived or untenable.

[80]In my bundle are rival advices on valuation. The valuation for the claimant comes from a surveyor and valuer based in Bromsgrove, Mr Raine. For the defendant it comes from Mr Anderson of Red Door Homes in Rochester who attaches examples of comparable properties that he considered. In both cases these have been prepared on a fairly limited basis owing to the exigencies of time. I in turn must make the best assessment I can based on what has been put before me.

[81]In relation to 145 Gordon Road the valuations are not far apart; the claimant putting it at £250,000, the defendant at £270,000. There is also not much difference in relation to 6 Goldsworth Drive, the claimant putting it at £500,000, the defendant at £575,000. Leaning to the side of prudence, I will adopt the claimant’s figures.

[82]There is significant disparity, however, in relation to Kaler House. For the defendant, reckoning the current rental as a 10 per cent yield produces a figure of £2,200,000. The defendant says in his statement that it is let to new tenants at a market rent and that it was, in the past, reckoned to be worth £2 million. But Mr Anderson also cites a comparable which, scaling up the square footage, indicates a value of £972,800. Mr Raine cautions that he is not a commercial valuer and cannot provide an opinion on this property, but observes that applying the same multiplier to rateable value would produce a figure of £1 million. That broadly aligns with Mr Anderson’s comparable. So prudently I will adopt a figure of £1 million.

[83]For 1 Kaler Mews, the defendant’s advisor refers to a comparable of £1,500,000 but the claimant’s figure is £600,000. As Mr Jory KC noted, that is also the figure on the HMLR registration form of 11 February 2025. I am prepared to work with a figure of £800,000.

[84]For the land adjoining Cobb House, the defendant’s advisor refers to potential for planning approval for building multiple flats and postulates a development value of £2,850,000. However, Mr Raine opines that the prospect of obtaining permission for such a development is not credible. I have no firm evidence to show that he is mistaken. He suggests that its current value as amenity land is nominal. All of that being so I cannot attribute any significant value to this plot.

[85]Accordingly I would assume a gross value of the first four properties of £2,550,000. However, the defendant says that there are outstanding loans on 6 Goldsworth Drive for £160,000, Kaler House for £475,000 and 1 Kaler Mews for £375,000. That points to a net global figure of £1,540,000. That is somewhat, but not greatly, higher than the claimant’s valuation of its claim.

[86]Extending the injunction only to Kaler House would, on the figures I feel able to work with, fall well short of that claim value. On the other hand, on the view that I have taken, which is the claimant’s view, nothing solid of value would be added by including the undeveloped land adjacent to Cobb House in the injunction. I will therefore not extend the continuing injunction to the undeveloped land adjacent to Cobb House. I have considered whether it is appropriate not to extend it to any one or more of the other properties. But to release any one of them would, on the figures I have given, result in a significant net diminution of the value of the properties covered by the injunction, compared with the value of the potential claim. I bear in mind, of course, that the purpose of the injunction is not to provide security; but nevertheless it is appropriate to apply a principle of proportionality at this stage of the process.

[87]All of that being so, I am not prepared to release any of the other properties from the continuing injunction. But I note that the defendant says that in relation to 145 Gordon Road his son, Hiran, and not he, receives the rent. Subject to further submissions on the terms of the injunction it appears to me that it should be aimed at restricting disposals of the underlying assets and not restricting receipt of the rents, whether, for example, by the defendant in relation to Kaler House or, if it is the case, his son in relation to 145 Gordon Road. But I will now hear further submissions as to the terms of the ongoing injunction. (Following further submissions)

[88]I have heard very full and extensive argument on costs. I am invited to summarily assess and award the claimant’s costs as per their costs schedule, which covers the three hearings that there have been, in the case of the hearing before me, in two parts this week.

[89]I have been shown the helpful guidance in Dos Santos v Unitel SA as to the general approach to costs applications in relation to freezing injunctions. The discussion by the Chancellor beginning at [115] distinguishes between three broad types of application: a self-contained interlocutory application such as a dispute over disclosure, a conventional interlocutory injunction application corresponding to the underlying claim, where conventional American Cyanamid principles apply and costs will usually be reserved pending the outcome at trial; and a freezing injunction where, for reasons explained, particularly at [118] and [119], a different general approach is indicated. I appreciate Mr Warwick’s point that in that case the ultimate conclusion was that the judge’s decision should not be disturbed and that ultimately costs always do lie in the discretion of the court. But I cannot see any reason, in principle, why I should, on the present occasion, depart from the general guidance. That is, in principle, that the court should make an award of costs on the grant of a freezing injunction until trial in favour of the successful applicant. That is what I propose to do.

[90]Nevertheless Mr Warwick invites me not to award the full amount of the costs at whatever level I, in principle, assess them, on the basis that he says this is not a case where his client has fought tooth and nail and/or not a case where the applicant has won on every point. He says that the applicant prayed in aid the allegations of fraud in the underlying claim, which I did not rely upon in my decision. That is true, but it was only one small strand of their application, and did not take up much of anyone’s time.

[91]Secondly, he maintains that his client saw his medical condition and its significance in the way stated in his witness statement and that it is a very vexed matter for him. He notes that I found “material misrepresentation”. I did not use the word “lie” which was used by Mr Jory in his submissions. As to that, I do not propose to gloss my own decision. I chose my words with care and I said what I meant to say. For the purposes of the costs application, although I have not made the finding that Mr Jory invited me to make, nevertheless the claimant had the better half of the argument of principle as to the significance of this point.

[92]Thirdly, Mr Warwick points out that he made concessions, in particular as to the serious-issue-to-be-tried point. He was right to do so, of course, and should not be criticised for that. But he would, frankly it seems to me, even with his considerable skill and experience, have struggled to make a contrary case. That is given the very clear guidance now established from the Court of Appeal as to the low threshold; and what is alleged in this case on the basis of the material that I have seen. I am not therefore disposed to make any particular reduction to my award on account of these points.

[93]The grand total of the statement of costs, which covers the original ex parte hearing, the initial return date before Ellenbogen J and then the final return day in two parts before me this week, is a grand total of £71,000 and a few pounds more, of which about £40,000 in round figures represents counsels’ fees for the three counsel who have been involved at different stages: Mr Birch, who is only a few years’ call; Ms Colter – a senior junior; and Mr Jory KC, an experienced silk. One way or another it appears to me that more efficient use of the overall resources of counsel could and should have been made. I absolutely make no criticism of the individual counsel concerned, each of whom has performed what was asked of them. But this could and should have been managed better and I will make some allowance to reflect that.

[94]So I will summarily assess the costs that I award in the total amount of £60,000. ---------------