Sean Lindsay v Jared O’Loughnane & Ors [2025] EWHC 973 (KB)

[2025] EWHC 973 (KB)Case No QB-2009-000127
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
Venue Royal Courts of JusticeDate Wednesday, 15 th January 2025
Strand
London
WC2A 2LL
Before
MASTER DAGNALLB E T W E E N:
Between
SEAN LINDSAYApplicantJARED O’LOUGHNANERespondentKAREN DRAYTON (as representative of the Estate of JAMES FRENCH deceased)RespondentPAUL DRAYTONRespondentANDREW HEAPHYRespondentMR B HURST appeared for Claimant/Applicant instructed on direct accessTHE FIRST DEFENDANT appeared In Person for in personMR G PRYCE appeared for Second & Fourth Respondents instructed by Clarke Kiernan LLP for The Third Respondent did not appear and was not representedAPPROVED JUDGMENT(delivered orally on 15 January 2025)This Transcript is Crown Copyright. It may not be reproduced in whole or in part, other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.MASTER DAGNALL:A Introduction
[1]Following my handing down judgment on 28 August 2024, which I will call the “August judgment” (and I use various defined expressions in it within this judgment), I received various communications from Mr Hurst, counsel for the claimant, asserting that I had made mistakes and omissions in the judgment and also, that I should grant permission to appeal.[2]I was concerned that I might have made a factual error in paragraph 209 of the August judgment and also that, on any appeal, and where, in any event, I would have to consider the application for permission to appeal, an Appeal Court Judge would be advantaged if I considered delivering a further judgment. I was also conscious of the decision in L-B Children [2013] UK SC 8 regarding the power of a Judge to correct a judgment where there had not yet been made and sealed a full consequential order and none such exists yet in this case, and which Mr Hurst sought to press on me.[3]I, therefore, made directions for and listed a hearing, which took place on the 16th and then, as time was insufficient, 17 December 2024. That hearing was listed so as to potentially also deal with truly consequential matters but little time was devoted to them at it. I have concluded that it is best, in order to achieve the Civil Procedure Rules (“CPR”) 1.1 overriding objective, to deliver this judgment and set up a situation whereby questions of appeal can be dealt with first, before consequential orders, but with permission to apply (although, I might reconsider that course, depending on what submissions follow this judgment).[4]Prior to the hearing, I received various written submissions from Mr Hurst, from Mr Pryce for the French estate and Mr Heaphy, and from Mr O’Loughnane. I have heard oral submissions from each. I have taken all such into account in coming to this judgment.

B Principles to be applied in considering whether to re-open a judgment

[5]In relation to this situation where I had already handed down the August judgment, Mr Pryce drew my attention to the decision in AIC v Federal [2022] UKSC 16, which itself considered the L-M decision. Mr Pryce apologised for only locating it very shortly before the December hearings. However, I suspect I would have made the same directions and listed the December hearings anyway, even if I had had that decision before me earlier.[6]In AIC, a Judge at first instance had made a decision to strike out an application against the grant of an arbitration enforcement order for failure on the part of the applicant to provide security for costs. Security for costs was then provided before the order was drawn up and sealed. The judge then granted the application, setting aside the judge’s own previous decision. The Court of Appeal reversed that course; but the Supreme Court made orders effectively restoring the situation to that which had been ultimately directed by the first instance Judge.[7]In the Supreme Court judgment, at paragraph 18, they referred to CPR1.1 and the overriding objective. In paragraphs 19 to 28, they referred to the L-M decision and the fact that that was a family case, decided under the Family Procedure Rules, which were different from the Civil Procedure Rules. In paragraphs 29 to 40, they set out their principles as to the approach to be taken in relation to an application of this nature, to reopen a handed-down judgment under the Civil Procedure Rules, as follows:
“The Relevant Principles 29. As this court observed in Sainsbury's Supermarkets Ltd v MasterCard Inc [2020] UKSC 24; [2020] Bus LR 1196, paras 238-239 ("Sainsbury's Supermarkets") , the higher courts have in a number of respects laid down important and binding principles regarding what justice requires in the context of litigation which are relevant to the application of the Overriding Objective in the CPR , and one of these is that there should be finality in litigation. This is a general principle with various aspects, including the rule in Henderson v Henderson (1843) 3 Hare 100 by which a party is precluded "from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones" (see Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46; [2014] AC 160, para 17 ). This rule "is firmly underwritten by and inherent in the overriding objective [in the CPR]" ( Sainsbury's Supermarkets , para 239). As Sir Thomas Bingham MR explained in Barrow v Bankside Members Agency Ltd [1996] 1 WLR 257, 260 , in a passage quoted in Sainsbury's Supermarkets , para 239: "The rule in Henderson v Henderson … requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided … once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise." 30. The foregoing review of the authorities shows that the task of a judge faced with an application to reconsider a judgment and/or order before the order has been sealed is to do justice in accordance with the relevant Overriding Objective. We have set out the Overriding Objective in CPR Part 1.1 above. As we have noted, the Overriding Objective was amended by the addition of enforcing compliance with rules, practice directions and orders: see CPR 1.1(2)(f) . This tends to emphasise, in the present context, the importance of finality attaching to the hearing on 6 December 2019 and the Enforcement Order. It was because FAAN had failed to comply with the orders requiring it to provide the Guarantee that AIC returned to court to ask for the Enforcement Order to be made. 31. As stated in Sainsbury's Supermarkets , the Overriding Objective implicitly affirms and reinforces the long-standing principle of finality, which had been an objective of civil procedure for at least 175 years: see eg Henderson v Henderson. Litigation cannot be conducted at proportionate cost, with expedition, with an appropriate share of the court's resources and with due regard to the rules of procedure unless it is undertaken on the basis that a party brings his whole and best case to bear at the trial or other hearing when a matter in dispute is finally to be decided (subject only to appeal). As Lewison LJ said in FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] FSR 29, at para 114 : "The trial is not a dress rehearsal. It is the first and last night of the show." In that respect we are in full agreement with Coulson LJ, in the Court of Appeal at para 50, when he said: "The principle of finality is of fundamental public importance … The successful party should not have to worry that something will subsequently come along to deprive him or her of the fruits of victory. The unsuccessful party cannot treat the judgment that has been handed down as some kind of rehearsal, and hurry away to come up with some new evidence or a better legal argument. … [T]here is a particular jurisdiction which permits a judge to change his or her order between the handing down of the judgment and the subsequent sealing of the order. But in most civil cases, the latter is an administrative function, and it would be wrong in principle to allow parties carte blanche to take advantage of an administrative delay to go back over the judgment or order and reargue the case before it is sealed. Hence it is a jurisdiction which needs to be carefully patrolled." 32. This means that, on receipt of an application by a party to reconsider a final judgment and/or order before the order has been sealed, a judge should not start from anything like neutrality or evenly-balanced scales. It will often be a useful mental discipline, reflective of the strength of the finality principle, for the judge to ask herself whether the application should even be entertained at all before troubling the other party with it or giving directions for a hearing. It may be a perfectly appropriate judicial response just to refuse the application in limine after it has been received and read, if there is no real prospect that the application could succeed. Judges should not re-open proceedings just to allow debate on the point if it is already clear that the judgment or order should not be re-opened. That would defeat the Overriding Objective in the CPR that cases be decided "justly" and "at proportionate cost". 33. But that falls well short of any supposed rule of law or practice that such an application must always be addressed by a two-stage process, as the Court of Appeal decided. That would in our view be to impose a straitjacket upon the judicial exercise of a discretionary jurisdiction which is contrary to the way in which it was addressed in Re L and alien to the essentially flexible nature of the judge's task when weighing competing considerations of potentially limitless variety against each other. There may be cases where the judge cannot reliably gauge the weight of the factors put forward for the exercise of the discretion to depart from adherence to the finality principle without hearing submissions from both sides. There may be cases where (since the order already made is already enforceable) urgency requires an immediate inter partes hearing with notice to both sides for a decision to be taken, rather than a protective stay pending the conduct of a two-stage process. 34. More fundamentally it may be impossible to disentangle the factors for and against departing from finality from those for and against the re-making of the order on the merits. The judge will in the end be faced with a single decision: do I set aside the order which I have already made and replace it with a different order? In our view the importance of the finality principle is better reflected in recognising that it will always (and especially in the case of a final order) be a weighty matter in the balance against making a different order, than in requiring slavish adherence to a two-stage process of analysis. 35. The weight to be given to the finality principle will inevitably vary, depending in particular upon the nature of the order already made, the type of hearing at the end of which it was made and the type of proceedings in which it was made. Leaving aside orders made on appeal, which lie outside the scope of this appeal and have already attracted their own jurisprudence (see, in particular, Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528 and what is now CPR Part 52.30 ), finality is likely to be at its highest importance in relation to orders made at the end of a full trial. But other kinds of final order, which end the proceedings at first instance, will attract the finality principle to almost as great a degree. Case management and interim orders lie towards the other end of the scale, and indeed many reserve liberty to the parties to apply to vary or discharge the order, even after it has been sealed. But the finality principle cuts in, as Coulson LJ said, when the order is made, not merely when it is sealed. After the order is sealed, the finality principle applies in a more absolute way, to put it beyond challenge in the court which made it, subject to any liberty to apply in the order, the application of the power in CPR Part 3.1(7) to vary or revoke it and the slip rule. 36. There is unlikely to be any particular magic in the word or phrase chosen to reflect the weight attributable to the finality principle in any decision whether to re- open a judgment and/or order before the order has been sealed, nor (which is the reverse of the coin) to describe the weight of the factor or factors which will be needed to prevail over the desirable adherence to finality. Although still in use in cases about reopening orders made on appeal under the Taylor v Lawrence jurisdiction and in the text of CPR Part 52.30(1) itself, the phrase "exceptional circumstances" has been subject to criticism in a variety of areas: see, eg, Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822, para 119 (Lord Neuberger of Abbotsbury) , referring to the judgment of this court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104, at para 51 (where the appropriateness of a test to depart from a standard position only in "very exceptional cases" was doubted); and, in the present context, Robinson v Fernsby [2003] EWCA Civ 1820, paras 94 (May LJ) and 120 (Peter Gibson LJ). Outside particular contexts where the ordinary outcome is specified to a high degree, the phrase fails to encapsulate anything other than unusualness with any useful precision. The fact that something is unusual or even very rare says little or nothing about its weight. "Strong", "weighty" or "compelling" are somewhat better, but still do not provide a definitive bright-line test. 37. It is not feasible to state such a test. An evaluative judgment has to be made, but it has to reflect and respect the importance in this context of the principle of finality. Structured forms of discretion, where a general discretionary power exists but the exercise of the discretion is governed by principles which accord priority and greater weight to some factors over others, arise quite often in the law: see, eg, the principles governing the grant of injunctive relief ( American Cyanamid Co v Ethicon Ltd [1975] AC 396 ; Fourie v Le Roux [2007] UKHL 1; [2007] 1 WLR 320, paras 16, 25 and 30 ) and the exercise of discretion regarding service out of the jurisdiction ( Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460 ; VTB Capital Plc v Nutritek International Corpn [2013] UKSC 5; [2013] 2 AC 337 ). A judge exercising such a discretion will err in law if he or she does not act in accordance with the principles which govern that exercise. In other contexts, by contrast, a discretion may be more open-ended, such as in relation to ordinary case management decisions, and leave greater choice to the judge to decide the weight to be given to each factor. 38. The Pinnock case was concerned with an application by a local authority landlord to recover possession from an overstaying tenant and the power of a judge to refuse an order for possession if it would involve a disproportionate interference with the tenant's right to respect for his or her private and family life and his or her home under article 8 of the European Convention on Human Rights . In the assessment of proportionality, in which a number of factors could be relevant, this court emphasised the very considerable weight to be given to the local authority's property rights. It was not simply to be treated as one factor among many, all having more or less the same significance. In order to express this idea, rather than saying that an order for possession should be refused only in "very highly exceptional cases" (see para 51) the court instead spoke of the authority's property rights being, "in the absence of cogent evidence to the contrary, … a strong factor in support [of the making of such an order] … in the overwhelming majority of cases" (para 53) and a matter "of real weight" constituting "a very strong case" for the authority in favour of obtaining such an order (para 54). 39. In light of the importance of the finality principle in the present context, we consider that such formulae are appropriate to be used here. It is difficult to improve upon them. The question is whether the factors favouring re-opening the order are, in combination, sufficient to overcome the deadweight of the finality principle on the other side of the scales, together with any other factors pointing towards leaving the original order in place. 40. It would also be wrong to attempt to identify a list of factors prima facie qualifying for inclusion as being in principle sufficient to displace the finality principle. Subsequent cases will always reveal that the list has proved to be inadequate, and the peculiarities of the present case could hardly have been imagined in advance. Some, such as judicial change of mind, have already been the subject of analysis in the authorities, but even they are of widely variable weight. It is perhaps easier to advance factors that will have no significant weight, such as a desire by counsel to re-argue a point lost at trial in a different way.”
[8]Mr Pryce and Mr O’Loughnane did not seek to persuade me that this reasoning meant that I should simply terminate the hearing and simply not entertain Mr Hurst’s submissions. I consider that approach to be correct as, firstly, the Supreme Court made clear that the underlying aim is to do justice (see paragraph 30).[9]Secondly, that finality is of great importance; but there is still a discretion in the Court to reopen a previous judgment and even the degree of weight of the finality principle will depend on all the circumstances (see paragraphs 35 to 36).[10]Thirdly, in many cases, it will be impractical or inappropriate to simply refuse an application to reopen in limine without hearing full submissions. This case seemed to me to be one of those cases. To examine Mr Hurst’s submissions required substantial time and especially where(a) I was concerned with a complex factual situation, regarding the possible interaction of financial transactions involving a considerable history and many different monetary amounts and accounts;(b) I was concerned I had made an error in my handed-down judgment as to a date which could have been important, with the result that my reasoning might have been undermined;(c) I was of the provisional view that I would be granting a relevant permission to appeal and an Appeal Court Judge would be potentially advantaged by any possible clarifications of my judgment;(d) I had not yet made any consequential order, let alone have had one sealed;(e) I had already listed the hearing.[11]All these matters, it seems to me, militated against adopting a two-stage process of considering whether there should be argument, and only then, if I so decided, entertaining it, and favoured my adopting a one-stage combined process.[12]Fourthly, in considering whether to reopen and/or to clarify a judgment, the Court is exercising a discretion which involves considering all the relevant material including, but only with its proper weight, finality (see paragraphs 37 to 40).[13]I note that AIC itself was concerned with the occurrence of a new post-judgment event; that is to say, the actual provision of the security in that case, and so it is distinguishable from the case before me on that basis alone.[14]Mr Hurst rather concentrated on saying either I had not dealt with particular matters which had been raised and which I therefore should have dealt with or that I was so obviously wrong that I should reverse my own previous decision. Mr Pryce submitted that neither was the case and pressed finality upon me, as did Mr O’Loughnane. I have borne in mind the above principles and the Supreme Court judgment generally, including the general overriding importance of the overriding objective and the subsidiary importance of finality, when coming to this judgment. C Mr Lindsay’s submission that I should not have permitted the advancement of the(1) consent or(2) estoppel cases, or any necessary amendment C1 Introduction[15]Mr Hurst first submits that I was, as he puts it “simply wrong” to consider and rule upon the defendants’ contentions of consent and estoppel, as he says that they had not been pleaded. He submitted that I should now recognise that, and find that it was not open to any of Mr O’Loughnane, Mr French or Mr Heaphy to raise those contentions, and, therefore, that I should find there had been breaches of the worldwide freezing order by the purported grants of equitable charges, and, therefore, that I should not allow those equitable charges to have priority over the claimant’s subsequent in time charging orders.

C2 The relevant history of this litigation

[16]With regards to how those assertions of consent and estoppel developed, I have been taken through the statements of case and submissions history.[17]By the original application notice, dated 9 April 2020, seeking payment out of the sale proceeds of the properties to him, Mr Lindsay had completed box five as follows:
“(5) The defendants held out that they were to assist Mr O’Loughnane with funding for the trial of the claim against him and that in order to do so, he had agreed to provide security in the form of a charge upon his various properties. My solicitors advised me that I would not be able to resist such an application if it concerned a bona fide lending arrangement to be secured by charges over the properties. I understand that this advice is correct. Hence, I agreed for charges to be placed over the properties to secure the loan advances from the second, third and fourth defendants but for the specific purpose of enabling the first defendant to fund his legal expenses at trial. Charges were subsequently placed upon the properties in favour of James French; Paul Drayton; and Andrew Heaphy and, at present, would ordinarily have priority over the charges in my favour following the charging orders.”
[18]In box six, Mr Lindsay asserted that “I know that the charges were procured by mis-statement”, were a device to defeat the worldwide freezing order and that no loans had actually been made.[19]By Mr Lindsay’s second witness statement dated 9 March 2020, at paragraphs 25 to 26, he stated that he had agreed a variation of the WFO to allow the equitable charges to be granted: “25. In 30th December 2009 a number of properties were charged by Jared O’Loughane in favour of James French; Paul Drayton; and Andrew Heaphy. At the time Mr O’Loughane was subject to the freezing injunction made on 19th February 2009. The properties remained charged in their favour until sold. The charges followed correspondence in 2009 between my solicitors Mishcon de Raya and Bates Wells and Braithwaite, then solicitors for Mr O’Loughane in the litigation… Mr O’Loughane held out that he was now impecunious and could not fund the litigation from his own resources but had found assistance from others in order to do so, He claimed the litigation and his solicitors costs would be paid with the assistance of loans from from others, but the loans had to be secured on the properties he owned. 26. As this was held out as a bona fide arrangement and apparently a lawful request, my solicitors files indicated that an application for a variation of the freezing injunction would succeed. In reliance on the truth the statements made by Bates Wells and Braithwaite on Mr O’Loughane’s instructions, I had little choice but to agree a freezing of a variation of the freezing injunction to allow charges to be placed on the properties. Charges were placed on properties by Bates Wells and Braithwaite, Solicitors, and in favour of Mr French, Drayton and Heaphy. The charges in favour of his three family members were registered by Mr O’Loughane.” [In paragraph 27 Mr Lindsay went on to assert that “I now know that that the statements made to induce my consent to allow the charges were false. It was part of a clever scheme to use the properties to pay debts Mr O’Loughane was perfectly capable of paying from his own resources…”][20]Those admissions, in so far as they related to what had been done and might otherwise have bound Mr Lindsay were, effectively, allowed by me to be withdrawn when I gave permission to Mr Lindsay to rely on his various subsequent statements of case.[21]I put it that way as what I consider Mr Lindsay to have been intending to say, in not very precise language, but I bear in mind that a witness statement gives the witness’s own recollection of events rather than making submissions or legal contentions, was that Mr Lindsay had relied on advice from his then solicitors, Mishcon de Reya to the effect that Mr Lindsay could not resist an application to vary the WFO to allow proper, Mr Lindsay says “bona fide”, equitable charges to be placed on the properties, and therefore, that Mr Lindsay had told Mishcon de Reya that Mr Lindsay, therefore, had to agree to such. That conversation between Mr Lindsay and Mischon de Reya resulted in Mishcon de Reya sending the 23 December 2009 letter.[22]I will return to those matters below, but I note that what Mr Lindsay thought and said is not relevant to the construction of the 23 December 2009 letter, which depends on its wording in its own factual matrix. Neither is Bates Wells and Braithwaite’s understanding of the letter relevant to its true construction. Neither would Mr Lindsay’s conversation with Mishcon de Reya be relevant to Bates, Wells & Braithwaite’s understanding of the 23 December 2009 letter (since Bates, Wells & Braithwaite had no knowledge of that conversation). However, that conversation would be relevant to Mr Lindsay’s and Mishcon de Reya’s understanding of the meaning of the letter insofar as that is relevant.[23]In paragraphs 45 to 46 of Mr Lindsay’s third witness statement, dated 22 March 2021, Mr Lindsay said that he did not believe that Mishcon de Reya had communicated any consent to the grant of the equitable charges to Bates, Wells & Braithwaite.[24]My order of 29 June 2020 required service by the parties of points of claim, points of defence and points of reply which complied with Civil Procedure Rules Part 16. Mr Hurst has referred to the particular wording of CPR 16.5:
“Content of defence 16.5 (1) In the defence, the defendant must deal with every allegation in the particulars of claim, stating— (a)which of the allegations are denied; (b)which allegations they are unable to admit or deny, but which they require the claimant to prove; and (c)which allegations they admit. (2) Where the defendant denies an allegation— (a)they must state their reasons for doing so; and (b)if they intend to put forward a different version of events from that given by the claimant, they must state their own version. (3) If a defendant— (a)fails to deal with an allegation; but (b)sets out in the defence the nature of their case in relation to the issue to which that allegation is relevant, the claimant is required to prove the allegation. (4) Where the claim includes a money claim, the claimant must prove any allegation relating to the amount of money claimed, unless the defendant expressly admits the allegation. (5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation. (6) If the defendant disputes the claimant’s statement of value under rule 16.3 they must— (a)state why they dispute it; and (b)if they are able, give their own statement of the value of the claim. (7) If the defendant is defending in a representative capacity, they must state what that capacity is. (8) If the defendant has not filed an acknowledgment of service under Part 10, they must give an address for service. (Part 22 requires a defence to be verified by a statement of truth.) (Rule 6.23 makes provision in relation to addresses for service.)”
I note that it provides that, if an allegation is denied then, a party must set out their reasons for the denial and any alternative set of facts relied upon.[25]By Mr Lindsay’s points of claim statement of case, originally dated 23 August 2020 and then, amended on 25 May 2022, and then re-amended on 19 January 2023, contains at paragraphs 23 to 29, sections headed, “Refusal of request for consent to dispositions out with the Angel Bell provision”, and, “Breach of freezing injunction”. “the Angel Bell provision” is a reference to paragraph 11 of the WFO (i.e. the worldwide freezing order originally made on 19 February 2009 and subsequently continued). I attach paragraphs 23 to 29 to this judgment as a schedule to it.[26]I note in particular the following elements: “23. In the course of 2009, BWB made repeated requests for consent to dispositions with the aroma of falsity not believed to be bona fide or within the exceptions to the freezing injunction. In respect of each Mishcon responded in terms that the dispositions were not permitted and were in breach of the freezing injunction unless within the Angel Bell provision or otherwise clearly permitted. In the premises, Mishcon gave clear notice that no disposition was permitted outwith the permitted exceptions absent the consent of Mr Lindsay. 24. In response to each request and repeatedly throughout 2009/2010, Mishcon requested/insisted upon the provision of documents and information evidencing the bona fides of the proposed disposition. In each case BWB refused to provide(i) particulars of the disposition;(ii) any document in support evidencing the bona fides of the disposition;(iii) particulars of the terms of the proposed disposition;(iv) any other fact or matter reasonable to provide to demonstrate the bona fides of the transaction. 25. The chronology of events to be relied upon at trial is as follows… … (17) On 16 December 2009 BWB gave notice of Mr O’Loughnane’s intention to provide “security in respect of funds advanced and to be advanced” by French and Heaphy up to £125,000 and £75,000 respectively secured against Mr O’Loughnane’s property interests; (18) On 18 December 2009 Mishcon de Reya demanded particulars of the further monies to be advanced by Mr French including (i) the purpose of such loans or the past use of such loans (ii) particulars of living and relocation expenses claimed to justify further lending. Particulars were requested of the purpose of the further £60,000 purported to be loaned by Heaphy and for details of use and quantum. The letter again warned of the Freezing Injunction’s prohibition on the provision of security without Mr Lindsay’s consent and requiring particulars prior to the grant of such consent; (19) On 22 December 2009 BWB purported to claim that Mr O’Loughnane was entitled to take out loans on commercial terms secured by appropriate security. This contention will be denied at trial. The letter also contended that loans to Mr O’Loughnane in 2008 from French were before the Freezing Injunction. BWB implied that they intended to provide particulars of further funds received and their application. No such particulars were provided at any time. (20) The said letter referred to past security provided in respect of Beacon Hill. It is said that this was further representation that the legal costs of trial would be discharged from the proceeds of sale of Beacon Hill; (21) On 23 December 2009 Mishcon de Reya acknowledged Mr O’Loughnane’s right to pay disbursements falling within the exceptions to the Freezing Injunction and the Angel Bell provision for disposal of assets in the ordinary and proper course of business. Mishcon’s letter warned BWB that they were seeking consent to transactions absent adequate verification that the transactions were legitimate and in the ordinary course of business, and in the face of refusal to provide basic information about the transaction and the relationship with the lending individuals despite repeated requests to be provided with that information; (22) The letter warned BWB of the impossibility of verification that the proposed transactions fell within the excluding provisions of the Freezing Injunction and warned BWB of Mr Lindsay’s inability to consent absent full provision of information. BWB were warned of the consequences of disposals falling outwith the Freezing Injunction exceptions; (23) On 12 January 2010 BWB notified Mishcon de Reya of the provision of further funds by Heaphy and French in respect of Counsel’s fees in the sum of £10,000 and £25,000 respectively. No particulars of any security provisions were provided; (24) On 28 January 2010 Mishcon de Reya reaffirmed their position as stated in the above letter dated 23 December 2009 (that no consent could be given) and requested further particulars of the loans referred to; also requesting confirmation that the sums of £10,000 and £25,000 were the sole funds advanced since 27 November 2009. BWB declined to provide any particulars… 28. By reason of the facts and matters particularised above, the charges placed upon the designated properties were outwith the Angel Bell provision; were not payments for reasonable and proper legal expenses, nor disposals made in the ordinary course of business.” … (17) On 16 December 2009 BWB gave notice of Mr O’Loughnane’s intention to provide Particulars were requested of the purpose of the further £60,000 purported to be loaned by Heaphy and for details of use and quantum. The letter again warned of the Freezing Injunction’s prohibition on the provision of security without Mr Lindsay’s consent and take out loans on commercial terms secured by appropriate security. This contention will French were before the Freezing Injunction. BWB implied that they intended to provide particulars of further funds received and their application. No such particulars were this was further representation that the legal costs of trial would be discharged from the disbursements falling within the exceptions to the Freezing Injunction and the Angel Bell provision for disposal of assets in the ordinary and proper course of business. Mishcon’s letter warned BWB that they were seeking consent to transactions absent adequate and in the face of refusal to provide basic information about the transaction and the relationship with the lending individuals despite repeated requests to be provided with letter dated 23 December 2009 (that no consent could be given) and requested further particulars of the loans referred to; also requesting confirmation that the sums of £10,000 and £25,000 were the sole funds advanced since 27 November 2009. BWB declined to

provide any particulars…

[27]Thus, the statement of case;(1) referred to the December 2009 correspondence as well as to the later and earlier letters;(2) set out Mr Lindsay’s version of its meanings;(3) said that the equitable charges were granted in breach of the WFO.[28]Mr O’Loughnane’s amended points of defence were dated 24 June 2022. At paragraphs 74 to 105, it responds to paragraphs 23 to 29 of Mr Lindsay’s statement of case. I schedule those paragraphs also to this judgment.[29]Paragraphs 94 to 99 relate to the December 2009 correspondence and its asserted meaning:
“94. Paragraph 25(19) is admitted insofar as BWB wrote a letter to MdR dated 22 December 2009 the remainder of this paragraph is denied. BWB’s letter of 22 December 2009 found by the First Respondent in trial bundle E2 pages 440-820 states that the Freezing Order dated 19 February 2009 does not prohibit the First Respondent from spending money on living expenses and a reasonable sun on legal advice and representation. This letter goes onto to confirm that the Order requires the First Respondent to inform the applicant where the money has come from and that the First Respondent has complied with the terms of the Order. In a letter dated 23 December 2009 from MdR to BWB contained in trial bundle E2 pages 440-820 MdR actually concede this point stating “We accept that the Freezing Order does not prohibit your client from spending money on living expenses up to the agreed weekly limit and a reasonable sum on legal advice and representation. We further accept that, once notice has been given as to where those monies are to come from, our client’s consent is not necessary for legitimate transactions.” “We further accept that the Order does not prohibit your client [the First Respondent] from dealing with or disposing of any of his assets in the ordinary and proper course of business”. 95. Paragraph 25(20) is denied. BWB’s letter to MdR dated 22 December 2009 referenced at paragraph 94 above makes no such representation that legal costs of the trial would be discharge from the proceeds of sale from Beacon Hill. At all material times the Applicant was made fully aware in correspondence from BWB that all equitable charges would be granted over the First Respondent’s beneficial interest in the properties. 96. Paragraph 25(21) is admitted insofar as MdR wrote to BWB on 23 December 2009. The remainder of this paragraph is denied. The First Respondent refers to paragraph 94 above to evidence MdR’s admission that the First Respondent had a right to dispose of his assets in the ordinary and proper course of business. Loans from the Second and Fourth Respondent for the First Respondent’s legal fees fell within this category. 97. Paragraph 25(22) is admitted insofar as the letter from MdR to BWB dated 23 December 2009 was written. The alleged warning referred to by the Applicant from MdR to BWB about verification of proposed transactions is irrelevant and has no bearing to this matter as the Applicant has been made fully aware of the amount of monies the Second and Fourth Respondent are seeking repayment of and where those monies were paid to and that it was in respect of the First Respondent’s legal fees. 98. Paragraph 25(23) is admitted. No particulars of security provisions were provided in BWB’s letter to MdR dated 12 January 2010 in respect of the amounts of £10,000 from the Fourth Respondent and £25,000 loaned by the Second Respondent in respect of Counsel’s fees. BWB’s legal opinion was that the Applicant was not entitled to this information as they had previously advised. 99. Paragraph 25(24) is admitted insofar as MdR wrote to a letter dated 28 January 2010 to BWB contained in trial bundle E2 pages 440-820. It is further admitted that MdR requested confirmation that the funds referenced in paragraph 98 above form part of the figures referred to in BWB’s letter dated 16 December 2009 with regards to equitable charges in favor of the Second and Fourth Respondents (those figures being £125,000.00 and £75,000.00 respectively). It is denied that the First Respondent required the Applicant’s consent as MdR had already conceded that the Applicant’s consent was not required in their letter dated 23 December 2009. It is unclear why the Applicant claims in this paragraph that no consent could be given. The First Respondent can only assume that if BWB declined to provide particulars of the sums advanced to them by the Second and Fourth Respondents in relation to the First Respondent’s fees was on the basis that the Applicant was not legally entitled to this information.”
[30]I note that in paragraph 94, it is said that within the 23 December 2009 letter “MDR concede this point”, and in paragraph 99, it is said that, “MDR had already conceded that Mr Lindsay’s consent was not required in their letter dated 23 December 2009”.[31]Mr French and Mr Heaphy’s reamended points of defence were dated 3 February 2023. They respond to paragraphs 23 to 29 of Mr Lindsay’s statement of case in paragraphs 41 to 48, which I have also scheduled to this judgment.[32]I note that in those paragraphs, they say that it is either unclear what Mr Lindsay is saying or that matters may be disputed between Mr Lindsay and Mr O’Loughnane, and they also assert that the equitable charges were appropriate security. Otherwise, they do not seem to mention any question of consent at all.[33]Mr Lindsay produced a revised points of reply to Mr O’Loughnane and Mr Heaphy and Mr French’s statements of case, dated 15 December 2022. They refer to paragraphs 67 of Mr O’Loughnane’s defence and to the 23 December 2009 letter and to the asserted impropriety of the equitable charges in their paragraphs six to nine, which I schedule to this judgment.[34]I note in particular that paragraph seven read as follows:
“7. The letter dated 23rd December 2009 was not consent to the charge as alleged by Mr O’Loughnane; Mr French and Mr Heaphy. To the contrary, it was a clear outright refusal to consent with amplified reasons and a warning of consequences of breach. Mr Lindsay will rely on paragraph 91 of the Amended Defence in which Mr O’Loughnane avers that Mishcon claimed to BWB that he was not permitted to place any charge over the properties without the consent of Mr Lindsay.”
[35]I also note that Mr Lindsay says in paragraph nine that the defendants had, effectively, mis-read paragraph 11 of the WFO in contending that it, itself, authorised the equitable charges. I have agreed with Mr Hurst that it did not (see paragraph 289 of the August judgment).[36]I also note that in paragraph 9 it was said that “Implied estoppel clams are not valid in fact or law…”[37]Mr Heaphy and Mr French responded to the revised reply by a rejoinder, dated 3 February 2023. I schedule paragraphs two to seven of that statement of case to this judgment.[38]I note in particular that in paragraph six, the following was said:
“The Second and Fourth Respondents aver that the Applicant between April 9, 2020 and December 15, 2022 has made materially inconsistent and inaccurate statements about the relevant content of the December 23, 2009 letter. It is also averred that Applicant has declined to acknowledge or address the inconsistencies and inaccuracies referred to above in his Rejoinder. Instead in paragraph 7 of the Applicant’s Reply the Applicant wrongly avers that it is the Second and Fourth Respondents, amongst others, who contend that December 23, 2009 letter was written consent to the grant of charges to them by the First Respondent. By reason of the matters set out above, it is averred that the contention that the Applicant consented to the grant of charges by the First Respondent is propounded by the Applicant in these proceedings, not the Second and Fourth Respondents.”
[39]At first sight, it is hard to see what was the purpose of Mr Heaphy and Mr French stating that Mr Lindsay was contending that Mr Lindsay consented and that Mr Heaphy and Mr French were not so contending.[40]Mr Lindsay served a document entitled “Notice to Admit”, dated 30 August 2022. At point nine, the respondents were asked to admit that, “MDR did not consent to placing charges over the specified properties in favour of Mr French, Mr Heaphy or Mr Drayton for any purpose”. The respondents refused to answer or respond to that notice.[41]The trial was listed for 28 February 2023. I had directed that lists of issues be prepared by each side.[42]Mr Lindsay’s list of issues was dated 20 February 2023. In a section entitled “The Issues of Fact to be Determined by the Court”, there was set out the following:
“2. In respect of the freezing injunction: (1) Did the freezing injunction prima facie preclude JOL from placing an equitable charge on his property? (2) Did Lindsay or the Court consent to the equitable charges relied upon? (3) Does the letter from Mishcon to BWB dated 23rd December 2009 amount to unfettered consent to place charges on the properties; or (as is contended by Lindsay) it amounts only to the statement only that consent was not required in respect of transactions falling within the exemptions provided by the Freezing Injunction; that the exemptions included an Angel Bell provision; and that if the placing of charges on the properties fell within the Angel Bell provision; consent was not necessary? (4) Does the text following the paragraph containing reference to the Angel Bell provision make plain that Lindsay was not consenting because BWB had failed to provide any information or documents which precluded agreement or grant of consent? (5) Was there therefor a breach of the freezing injunction? (6) If so, is this a form of iniquity or turpitude within (for example Les Laboratoires) which is an issue of public law concern (as opposed to private law concern) and which brings into play public policy precluding JOL/French/Heaphy from asserting the validity of the equitable charge?”
[43]Mr French and Mr Heaphy provided a list of issues dated 28 February 2023 under a section headed “Factual Issues”.[44]Paragraph 22 set out, “Did A”- that is to say Mr Lindsay – “object to the grant of charges to R2/R4” – that is Mr French and Mr Heaphy – “by R1” – that is Mr O’Loughnane.[45]Paragraph 24 stated, “Did A consent to the grant of charges to R2/R4 by R1?”[46]Mr Lindsay provided a skeleton argument for the trial, dated 24 February 2023 and in it, Mr Hurst, as counsel, referred to a case summary provided by Mr Lindsay’s side, dated 18 February 2023.[47]At paragraph 95, sub-paragraph two, in a section headed, “The Issues of Fact to be Determined by the Court in respect of the Freezing Injunction”, the question was posed, “Did Lindsay or the Court consent to the equitable charges relied upon?”[48]That may refer back to paragraphs 30 to 33 of that document. In there, it was asserted that Mr French and Mr Heaphy were claiming that Mishcon de Reya had consented and were relying on ambiguous paragraphs in earlier witness statements, but that Mr Lindsay had made clear that he did not consent and that Mishcon de Reya had refused consent and, in effect, that the 23 December 2009 letter only related to the exemption in the WFO of a transaction which fell within the ordinary course of business on the part of Mr O’Loughnane.[49]The rest of the skeleton argument did not seek to address questions of consent. However, a chronology was provided in which reference was made to the 23 December 2009 letter and it was said, “Mishcon de Reya refused BWB’s request for consent to place charges over the properties and warn of consequences if security is not in the ordinary course of business”.[50]The skeleton argument for Mr French and Mr Heaphy prepared by Mr Pryce is dated 27 February 2023. Paragraphs 38 to 40 of that skeleton argument read as follows:
“38. It is clear that A had been advised by his former solicitors that the granting of charges by R1 to R2/R4 as explained by BWB was facilitating R1 spending a reasonable sum of money on legal advice and representation under the freezing order. The 23/12/09 letter plainly recognised that what was being proposed was in accordance with freezing order purposes, subject to the underlying loan transactions being a legitimate. 39. It is submitted that the granting of charges by R1 in December 2009 to persuade R2/R4 that they could safely lend him some money with a prospect that it would be repaid because it was secured against R1’s real property interests was a disposal of assets in the ordinary and proper course of business exception in the freezing injunction. A was defending himself against a cause of action in deceit whereby it was plain that the consequences of the claim succeeding would be catastrophic for his ability to act as a director of companies in financial services and continue to be an authorised by the then Financial Services Authority (FSA). 40. It is submitted that similar to the circumstances of the settlement in the Normid Housing case, the action of granting charges in order to obtain funding for legal advice and representation in the 2009 claim was within the freezing order jurisdiction purposes and did not require an application to court. At the time of the transaction in December 2009 A’s solicitors agreed with this stance as a matter of principle in correspondence.” charges by R1 to R2/R4 as explained by BWB was facilitating R1 spending a reasonable sum of money on legal advice and representation under the freezing order. The 23/12/09 letter plainly recognised that what was being proposed was in accordance with freezing order purposes, subject to the underlying loan R2/R4 that they could safely lend him some money with a prospect that it would be repaid because it was secured against R1’s real property interests was a disposal of assets in the ordinary and proper course of business exception in the freezing injunction. A was defending himself against a cause of action in deceit whereby it was plain that the consequences of the claim succeeding would be catastrophic for Housing case, the action of granting charges in order to obtain funding for legal advice and representation in the 2009 claim was within the freezing order jurisdiction purposes and did not require an application to court. At the time of the transaction in December 2009 A’s solicitors agreed with this stance as a matter of principle in correspondence.”

transaction in December 2009 A’s solicitors agreed with this stance as a matter of

[51]The assertion in paragraph 38 is that Mishcon de Reya, by 23 December 2009 letter “recognised” i.e. agreed, at least in principle, with the BWB contention that no application was required under the WFO in relation to the equitable charges as long as they were “legitimate”.[52]That assertion was repeated in the chronology which Mr Pryce provided which stated, in relation to 23 December 2009 document, “MDR letter to BWB – no requirement for consent to grant charges to secure loans, provided the loan transactions are legitimate”.[53]In the opening section of the trial, Mr Hurst took me through the MDR/BWB 2009 and 2010 correspondence. As part of that, he took me through the 23 December 2009 letter. When referring to it, at one point, he stated, “That is not a consent or an acknowledgement, as Mr Pryce argues in his skeleton argument, that this was a consent, the placing of charges on the properties. It was a warning that in order to do anything, including the provision of security, it had to fall within the exceptions”.[54]Mr Hurst then went on to make submissions that the equitable charges did not fall within the Angel Bell paragraph 11 exception. He further submitted that there was clearly no consent unless the equitable charges were granted in the ordinary course of Mr O’Loughnane’s business; and that such obviously could not be the case because the claim against Mr O’Loughnane was a personal one which did not relate to any business of Mr O’Loughnane’s but only of his companies.[55]During the trial itself, which was spread over numerous days with substantial adjournments, at the first set of hearings, Mr Oakley attended but was not called to give evidence. It was common ground before me that counsel had all agreed that these were circumstances where Mr O’Loughnane had made clear that he would not waive legal professional privilege and that no one was prepared to seek to go behind that. No witness was called from Mishcon de Reya.[56]After completion of the evidence, there were written and oral submissions. Mr Hurst, for Mr Lindsay, provided a written submission, dated 25 January 2024, where in paragraphs 135 onwards, he simply asserted that the equitable charges were breaches of the WFO unless there had been an application to Court or consent and, since there had not been, they simply amounted to breaches of its terms.[57]Mr Pryce, now for Mr French’s estate (Mr French having during the course of the trial first lost his mental capacity to conduct litigation and then died), and Mr Heaphy provided a written submission on 23 February 2024. In paragraphs 81 to 85, it was asserted that the 23 December 2009 letter stated on its true construction that the claimant’s consent was not required to the equitable charges and amounted to an unequivocal acceptance that “commercial” loans fell within the WFO exception. That was repeated in paragraph 97.[58]Mr Hurst provided a written response, dated 7 March 2024. Paragraphs 18 to 25 of that written response read as follows:
“GP seeks to argue some form of “estoppel” arises from MdR’s correspondence 18. GP seeks to ride on the back of exchanges with the Court on 28/02/2023 to argue that as MdR did not expressly warn BWB that they considered charges a breach of the injunction, they expressly or impliedly consented. Both propositions are unsustainable. First, MdR plainly warned BWB on numerous occasions that charges required MdR’s consent if not within Angel Bell. Secondly, the proposition that some form of estoppel arises from alleged lack of clarity in position is absurd in law. In support, GP refers to an off-the-cuff comment by the Court on 28/02/2023, and inaccurately cites part of the transcript 28/02/23 at p.82F. 19. The Court is asked to revisit the transcript which shows all issues raised with Counsel were answered in full, see Transcript 28/02/2023 at p.72-82, in particular at p.79-82. See in particular the extracts from the MdR letter cited in italics at p.77 F-H in final paragraph in which MdR said in terms: “You are asking us to consent to something we know nothing about and to agree that something may be legitimate and in the ordinary and proper course of business when you have told us nothing and conceal everything. How can we do that.” 20. Waiver/estoppel demands knowledge of the facts. BWB concealed everything from MdR. MdR listed BWB’s concealed facts and documents, including information about Piagi and JOL’s involvement. 21. The snare and delusion remark re para 11(2), referred to in GP para 89, was inappropriate. This was a freezing injunction in standard form following recognised precedents, see White Book 2023 Vol 2 [15-71 to 15-73] and 15-54 generally. See CPR 25 and FI Civil Procedure Forms; White Book 2023 Vol 2 at p.3069. Freezing injunctions always includes an Angel Bell provision; and other precedents. It is a provision intended to protect those who may presently be in business and is not a snare. 22. MdR’s position was summarised to the Court in the transcript at p.79 G-H in which MdR said in terms: “if you are legitimately within the exceptions, you can do what you wish and you don’t have to tell us, but woe betide you if you are not, and by the way, you would be wise to ensure that this is not contrary to Insolvency Act 1986”. 23. Injunctions are to be strictly construed. There are no implied terms in freezing injunctions. 24. GP’s interpretation of the solicitors correspondence suggests failure of full examination. MdR had two issues in mind, first whether any proposed course fell within Angel Bell and was unobjectionable, secondly whether they should nonetheless grant consent if not within any exception. To grant consent required full knowledge of facts and consideration of whether the proposed purpose would be regarded by the court as reasonable on the facts. MdR simply told BWB of the approach they would take to consent requests and why. 25. The BWB charge over Beacon Hill did not fall within an exception and was granted by consent. MdR advised SL that if JOL had no other access to funds to pay his solicitors, the charge would be permitted. SL consented to MdR agreeing to charges if satisfied that they were proper. MdR were never satisfied save in respect of BWB’s charge over Beacon Hill.”
[59]I note that in the above, Mr Hurst referred to Mr Pryce seeking to argue that there was express or implied consent or an estoppel and asserted that for there to be a waiver or estoppel required relevant knowledge and that, in any event, the terms of an injunction such as the WFO must be construed strictly. He made no reference to any question of absence of reliance.[60]There were then oral submissions and hearings on the 20th to 22 March 2024. On 21 March 2024, Mr Pryce made submissions stating that the letter amounted to a consent. Mr Hurst made an intervention saying that he objected to this as it was not pleaded. Mr Pryce went on to submit that Mishcon de Reya had agreed that consent was not required as long as the equitable charges were “legitimate” and that Bates, Wells & Braithwaite could reasonably take the Mishcon de Reya statements as confirmation that Mr Lindsay would not object to the grant of the proposed securities.[61]Mr O’Loughnane, in his oral submissions, posed a rhetorical question as to how Mr Lindsay could object to Mr French and Mr Heaphy taking equitable charges when Bates, Wells & Braithwaite had their own charge in place with no objection by Mr Lindsay, stating that the same arguments as to invalidity would apply in the case of Bates, Wells & Braithwaite as they would with regards to Mr French and Mr Heaphy. At first sight, although this in no way answers the questions before me, it seems to me that Mr O’Loughnane would be right to say that if the charge to Bates, Wells & Braithwaite was not in the ordinary course of business on the part of Mr O’Loughnane - and which, it seems to me, it could not have been, for the same reasons as to why it could not have been in relation to Mr French and Mr Heaphy as there was no relevant business being carried on by Mr O’Loughnane - then the BWB charge would be potentially subject to the same attack as has been made on Mr French and Mr Heaphy’s equitable charges. I have not heard submissions on this point but I suspect that Mr Hurst would simply argue that Mr Lindsay is entitled now to decide what he wishes to say is invalid and what he is not concerned with.[62]Mr Hurst, in any event, responded in his oral submissions to say that it was wrong to construe the 23 December 2009 letter in any way as being a consent, although I have no record of Mr Hurst formally repeating his objection to the defendants’ contentions on the basis of their not having been pleaded.[63]There were then further written submissions. Mr Lindsay provided written submissions of 4 April 2024 and in paragraphs 40 to 42, Mr Heaphy stated that Mr Pryce had accepted that Mishcon de Reya did not consent and was rather only contending that they did not object, albeit that, in fact, Mishcon de Reya had objected. At paragraph 41, Mr Hurst did, in fact, state that the fact that Mishcon de Reya had consented to the Bates, Wells & Braithwaite charge was irrelevant; and, further, he repeated that there was no consent to the French and Heaphy equitable charges in writing.[64]Mr O’Loughnane provided a written submission of 10 May 2024 in which he asserted that Mishcon de Reya had confirmed that their consent was not required.[65]Mr French’s estate and Mr Heaphy provided a written submission also of 10 May 2024. In paragraphs 32 to 36, it was asserted: firstly, that Mishcon de Reya had agreed a variation to the freezing injunction; and, secondly, that they had made it clear that a genuine and otherwise valid transaction did not require consent, whether or not it was within the exceptions to the WFO. In paragraph 59(5), it was also asserted that any breach of WFO was not of a condign nature.[66]Mr Lindsay responded to this by a further written submission from Mr Hurst of 29 May 2024. In paragraphs 24 to 27, it was asserted that no consent had been granted by Mishcon de Reya. In paragraph 38, it as asserted the fact that there was a breach of worldwide freezing order meant that Mr French’s estate and Mr Heaphy cannot keep “the gains of a breach”.[67]I then provided my draft of the August judgment and to which Mr Hurst responded by asserting the pleading point. I then considered and dealt with the pleading point in the concluding paragraphs of the August judgment and, in particular, in paragraph 297, where I concluded that insofar as matters were not pleaded, I should grant permission to amend.

C3 Principles relating to pleading and advancing cases

[68]Mr Hurst, before me now, repeats his submission that it is essential for such a matter as consent or estoppel to be pleaded. He cites a number of cases.[69]Firstly, Al-Medenni v Mars [2005] EWCA 1041, at paragraphs 21 to 25:
“21. In my view the judge was not entitled to find for the claimant on the basis of the third man theory. It is fundamental to our adversarial system of justice that the parties should clearly identify the issues that arise in the litigation, so that each has the opportunity of responding to the points made by the other. The function of the judge is to adjudicate on those issues alone. The parties may have their own reasons for limiting the issues or presenting them in a certain way. The judge can invite, and even encourage, the parties to recast or modify the issues. But if they refuse to do so, the judge must respect that decision. One consequence of this may be that the judge is compelled to reject a claim on the basis on which it is advanced, although he or she is of the opinion that it would have succeeded if it had been advanced on a different basis. Such an outcome may be unattractive, but any other approach leads to uncertainty and potentially real unfairness. 22. The starting point must always be the pleadings. In Loveridge and Loveridge v Healey [2004] EWCA Civ 173 , Lord Phillips MR said this at paragraph 23: “In McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 Lord Woolf MR observed: ‘Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular they are still critical to identify the issues and the extent of the dispute between the parties.’ It is on the basis of the pleadings that the parties decide what evidence they will need to place before the court and what preparations are necessary before the trial. Where one party advances a case that is inconsistent with his pleadings, it often happens that the other party takes no point on this. Where the departure from the pleadings causes no prejudice, or where for some other reason it is obvious that the court, if asked, will give permission to amend the pleading, the other party may be sensible to take no pleading point. Where, however, departure from a pleading will cause prejudice, it is in the interests of justice that the other party should be entitled to insist that this is not permitted unless the pleading is appropriately amended. That then introduces, in its proper context, the issue of whether or not the party in question should be permitted to advance a case which has not hitherto been pleaded.” 23. In the present case the claimant's pleaded case was that Mr Braich and no one else placed the reel on the machine. If the claimant wished to advance the third man theory as an alternative to her primary case, then she had to seek permission to amend her pleadings. It may be that she had sound tactical reasons for not taking this course. To advance such an alternative case was inconsistent with the claimant's evidence, and might in any event have been interpreted as a sign of weakness. There was no hint of the third man theory in the witness statements, the way in which the case was opened or in the evidence of the claimant's witnesses. I accept that there was a rather faint-hearted espousal of the theory by Miss Harmer in her closing submissions, but in my judgment it was by then far too late for the claimant to take the point. 24. As the judge himself recognised, the third man theory was not explored with any of the witnesses. If the defendants had been alerted to the fact that this theory was in play, then they would at least have wished to consider exploring it with some of the witnesses who were called to give evidence. For example, Mr Forester, the Key Operator, might have been asked which employees were on duty at the time of the accident, and whether any of them was employed to move reels of wrapping paper about and place them on the machines. The defendants were also denied the opportunity of considering whether to seek evidence from other witnesses directed to this point. 25. Having concluded, as he did, that neither the claimant herself nor Mr Braich was responsible for placing the reel in the position from which it fell, the judge should have concluded that the claim was not proved and he should have dismissed it. In my judgment that should have been the inevitable consequence of his findings. By making findings for which the claimant was not contending, it seems to me that the judge crossed the line which separates adversarial and inquisitorial systems. What he did may have been legitimate in an inquisitorial system. It was, in my judgment, impermissible in our system.”
[70]I note that those paragraphs (1) make clear the importance of pleadings; (2) accept pleadings can be amended – and as to that I note that the White Book notes at 17.3.9 make clear, giving examples, that the Court can permit amendment at any point, including even after judgment, albeit that whether or not the Court should permit such an amendment is another matter; (3) t make clear that it was impermissible to introduce a new issue of fact which would have had to have been but had not been explored with the witnesses or potentially other witnesses who could well have provided material evidence.[71]Mr Hurst next referred me to Primeo v Bank of Bermuda [2023] UKPC 40, at paragraphs 148 to 155: “148. The adversarial system of justice imposes on the parties the obligation to identify the issues that arise for determination in the litigation so that each party has the opportunity to respond to the points which the other party makes. The function of the judge is to adjudicate on those issues alone: Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041 ("Al Medenni") , para 21 per Dyson LJ. The lawyers representing each party adduce evidence, both oral and documentary, and cross-examine the witnesses of the other party in order to establish the case which they are advancing and to counter the case which the other party is making. The lawyers in their submissions at the end of the trial address the cases which have been put to the court. In The Owners of the Ship "Tasmania" and the Owners of the Freight v Smith, the Owners of the Ship "City of Corinth" (1890) 15 App. Cas. 223 ("The Tasmania") , 225 Lord Herschell stated: "The conduct of a cause at trial is governed by, and the questions asked of the witnesses are directed to, the points then suggested. And it is obvious that no care is exercised in the elucidation of facts not material to them." As Dyson LJ stated in Al-Medenni , the judge may, in the course of a trial, invite or encourage the parties to recast or modify the issues but must respect a party's decision if the party refuses to do so. The consequence is that a judge may be compelled to reject a claim on the basis that it was advanced although the judge may think that the claim would have succeeded if it had been advanced on a different basis. In an adversarial system, fairness dictates that outcome. In Air Canada v Secretary of State for Trade [1983] 2 AC 394, 438 Lord Wilberforce stated: "In a contest purely between one litigant and another … the task of the court is to do, and be seen to be doing, justice between the parties … There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter: yet if the decision has been made in accordance with the available evidence and with the law, justice will have been fairly done."149. It is a general rule that a party must advance his whole case at the trial. As Lewison LJ colourfully put it in a case concerning an appeal against a trial judge's findings of fact: "The trial is not a dress rehearsal. It is the first and last night of the show": Fage UK Ltd v Chobani UK Ltd, Chobani Inc [2014] EWCA Civ 5; [2014] FSR 29, para 114 (ii). There are sound policy reasons for this general rule. First, there is a public interest in the efficient and proportionate resolution of disputes : Sainsbury's Supermarkets Ltd v Visa Europe Services LLC [2020] UKSC 24; [2020] Bus LR 1196, ("Sainsbury's") , paras 238-239; and UK Learning Academy Ltd v Secretary of State for Education [2020] EWCA Civ 370 ("UK Learning Academy") , para 44 per David Richards LJ. Secondly, fairness and substantial justice point in the same direction: parties are entitled to know where they stand at the trial and make their decisions relating to the conduct of the litigation in the knowledge of the issues which will be determined at trial: Jones v MBNA International Bank Ltd [2000] EWCA Civ 514 ("Jones"), para 52 per May LJ; parties are not to be vexed by the reformulation of claims in successive suits: Barrow , 260 per Sir Thomas Bingham MR.150. These considerations are relevant to new points being taken on appeal. There is no absolute bar on the taking of a new point on appeal. Where the new point is a pure point of law which can be argued on the basis of the facts as found by the judge at first instance, an appellate court may allow the point to be taken if satisfied that the other party has had an opportunity to meet the point and will not suffer prejudice. But an appellate court must exercise great caution before allowing a party to take a new point on appeal after there has been a full trial involving live evidence and cross-examination. In Pitallis v Grant [1989] QB 605 Nourse LJ explained the rule which operates as a norm, quoting from the judgment of Sir George Jessel MR in Ex p Firth, In re Cowburn (1882) 19 Ch D 419, 429 : "the rule is that, if a point was not taken before the tribunal which hears the evidence, and evidence could have been adduced which by any possibility would prevent the point from succeeding, it cannot be taken afterwards. You are bound to take the point in the first instance, so as to enable the other party to give evidence."151. A judge at first instance assesses the parties' cases and makes findings of fact which are relevant to the cases which the parties have argued in the trial. It has often been said that the trial judge having seen and heard the witnesses is in the best position to assess their evidence on a particular issue in the context of the evidence as a whole. The trial judge also assesses what a document would convey to a reasonable reader in the position of the party who received it having regard to all that preceded it: UK Learning Academy , para 41. The judge's findings of fact are shaped and limited by the cases which the parties have argued at trial; and there is a danger that injustice may result if an appellate court uses findings which were made in the context of the arguments, which the parties advanced at first instance, to determine a different legal case which a party advances for the first time on appeal.152. Against this background, the standard appellate approach, which has been endorsed in later decisions, was set out by Lord Herschell in The Tasmania , 225: "a Court of Appeal ought only to decide in favour of an appellant on a ground there put forward for the first time, if it be satisfied beyond doubt, first that it has before it all the facts bearing upon the new contention, as completely as would have been the case if the controversy had arisen at the trial; and next, that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded them when in the witness box."153. There is, as Snowden J explained in Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337; [2019] 4 WLR 146, paras 26-28 , a spectrum of cases. That spectrum ranges from a case where the new point would have caused the parties to conduct the trial differently or would involve a further factual enquiry and prejudice to the opposing party, in which circumstance the principle of finality in litigation carries great weight, to a case where the new point is a pure point of law and the court can be satisfied that the opposing party will not suffer prejudice, in which the appeal court is far more likely to allow the point to be taken. See also Singh v Dass [2019] EWCA Civ 360, paras 16-18 per Haddon-Cave LJ.154. The United Kingdom Supreme Court has confirmed this approach in two recent judgments: Sainsbury's (above) paras 235-243; and Test Claimants in the Franked Investment Income Group Litigation v Revenue and Customs Comrs [2020] UKSC 47; [2022] AC 1 ("FII") , paras 85-94. The cases mentioned above set out important and binding principles regarding what justice requires: AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16; [2022] 1 WLR 3223, para 29 , per Lord Briggs and Lord Sales.155. In summary, because of the principle of finality in litigation and the policy reasons which support that principle, an appellate court proceeds with great caution before it allows a new point to be taken on appeal. The appellate court may depart from the principle of finality, as it did in Pitallis v Grant , where the point is a pure point of law and the proceedings below would not have been conducted differently if the point had been taken at first instance. It may also depart from the principle in the context of a group litigation where a point of legal principle that will affect many parties is in issue, as in FII (above). But the principle of finality is likely to be upheld if new evidence is needed for its determination or if the opposing party is otherwise prejudiced. The cases which the Board has discussed above provide useful guidance as to the circumstances in which the principle of finality will be upheld.” 72. Mr Hurst submitted that pleadings were essential for parties to identify issues and make submissions and present their cases. However, I note the following. Firstly, it is made clear at paragraph 148, that a Judge can invite a party to recast a case and that the judge is only barred from considering a recast case where the party says that they will not so recast it. That is not the situation here. Even if Mr Pryce had not pleaded consent or estoppel, Mr Pryce sought to advance those cases at the trial (see above). Secondly, the Court always has a discretion to allow new points to be taken, including even if they are only raised at the appellate stage, but depending on what the new point is and on such matters as to whether it would have consequences as to the evidence which might have been deployed with regard to it and so that permitting its introduction would or might cause prejudice. 73. It further seems to me, in this case, that a relevant circumstance is that the Court is being asked by the claimant to make a ruling on the public policy consequences of particular facts. Here, I am being invited to hold that the equitable charges were granted in breach of the worldwide freezing order and for that reason, are not to be enforced. It seems to me that, in relation to that sort of matter, the Court should have some caution in deciding the matter on the basis that a party has not formally pleaded a particular case where that case appears from material which is actually before the Court. The Court, when refusing to enforce a transaction, here, the equitable charges, in these circumstances is seeking to protect the integrity of its own process and an approach of ignoring relevant material before the Court simply because it has not been pleaded risks achieving the opposite and rendering the litigation potentially something of an artificial gain. However, that does not, of itself, detract necessarily from the importance of matters being pleaded.[74]Mr Hurst next took me to McCarthy v Jones [2023] EWCA Civ 589: “10. In Boake Allen Ltd v HMRC [2006] EWCA Civ 25, [2006] STC 606 Mummery LJ said at [131]: "While it is good sense not to be pernickety about pleadings, the basic requirement that material facts should be pleaded is there for a good reason—so that the other side can respond to the pleaded case by way of admission or denial of facts, thereby defining the issues for decision for the benefit of the parties and the court. Proper pleading of the material facts is essential for the orderly progress of the case and for its sound determination. The definition of the issues has an impact on such important matters as disclosure of relevant documents and the relevant oral evidence to be adduced at trial. In my view, the fact that the nature of the grievance may be obvious to the respondent or that the respondent can ask for further information to be supplied by the claimant are not normally valid excuses for a claimant's failure to formulate and serve a properly pleaded case setting out the material facts in support of the cause of action. If the pleading has to be amended, it is reasonable that the party, who has not complied with well known pleading requirements, should suffer the consequences with regard to such matters as limitation."11. This court added to that in Prudential Assurance Co Ltd v HMRC [2106] EWCA Civ 376, [2017] 1 WLR 4031 at [20] : "Our procedural system is and remains an adversarial one. It is for the parties (subject to the control of the court) to define the issues on which the court is invited to adjudicate. This function is the purpose of statements of case. The setting out of a party's case in a statement of case enables the other party to know what points are in issue, what documents to disclose, what evidence to call and how to prepare for trial. It is inimical to a fair hearing that a party should be exposed to issues and arguments of which he has had no fair warning. If a party wishes to raise a new point, he should do so by amending a statement of case. We were told that by the time that skeleton arguments for trial were served each party would know what points were in issue. We do not regard that as sufficient."12. Neither of these principles were affected by the subsequent appeal in each case. Lord Phillips MR said much the same thing in Loveridge v Healey [2004] EWCA Civ 173, [2004] CP Rep 30 at [23] ; as did Dyson LJ in Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041 at [21] . Likewise in Sainsbury's Supermarkets Ltd v Visa Europe Services LLC [2020] UKSC 24, [2020] Bus LR 1196 the Supreme Court said at [242]: "In the adversarial system of litigation in this country, the task of the courts is to do justice between the parties in relation to the way in which they have framed and prosecuted their respective cases, rather than to carry out some wider inquisitorial function as a searcher after truth."[75]Mr Hurst submitted from the authorities which were there cited, firstly, that pleadings are crucial. Secondly, that the Court is not seeking to conduct an inquisitorial search for truth but to resolve an adversarial sent of contentions which each party has sought to raise and which must be raised by the proper process of their being pleaded. Thirdly, that it is not sufficient for the Court or the other side to simply know by the time of trial what a party’s case is. If that case has not been pleaded, a party cannot advance it unless there is an amendment permitted. Otherwise, the other side will not know how to prepare and what witnesses to call, etc. Fourthly, that this is a case where questions of consent and estoppel were only first raised in Mr Pryce’s skeleton on the first day of the trial, or possibly provided a day or two before it.[76]Again, I note that the various citations allow for amendments to be permitted; but, of course, only where it is just to permit them.[77]Mr Hurst finally took me to Prudential v HMRC [2016] EWCA 376, at paragraphs 18 to 22:
“18. This paragraph plainly envisages that Particulars of Claim will be served. Particulars of Claim must comply with CPR Part 16. If the claim is made under Part 8 rather than under Part 7 , then the rules require relevant evidence to be served when the claimant makes his claim. Either way, relevant facts must in our view be pleaded. If they are facts generally applicable to all claimants, they may be pleaded in Group Particulars of Claim; if they are specific to a particular claimant they may be set out in a schedule. If the claim is made under Part 8 , they must be contained in a witness statement. By the same token any relevant defence must also be pleaded. Indeed CPR Part 19 and the accompanying Practice Direction contain no special provisions relating to the defence; so the usual rules apply. 19. Finally, on this point, while Lord Woolf's observations were obiter, the decision of the Court of Appeal (which was not appealed to the House of Lords) is binding on us as regards the subject matter of the cross-appeal. Henderson J was right so to hold in Europcar UK Ltd v HMRC [2008] EWHC 1363 (Ch), [2008] STC 2751 . 20. Although the underlying claims depend on EU law, procedural questions are (at least in general) governed by national law. Our procedural system is and remains an adversarial one. It is for the parties (subject to the control of the court) to define the issues on which the court is invited to adjudicate. This function is the purpose of statements of case. The setting out of a party's case in a statement of case enables the other party to know what points are in issue, what documents to disclose, what evidence to call and how to prepare for trial. It is inimical to a fair hearing that a party should be exposed to issues and arguments of which he has had no fair warning. If a party wishes to raise a new point, he should do so by amending a statement of case. We were told that by the time that skeleton arguments for trial were served each party would know what points were in issue. We do not regard that as sufficient. In this case, for example, HMRC's skeleton argument was served about 10 days before the trial started. If (as in fact happened in this case) HMRC wished to argue that the evidence proposed to be called by Prudential was directed at the wrong issue (being an issue that had not been raised before) 10 days' prior notice was manifestly inadequate. 21. Although in days gone by the court would routinely allow late amendments to statements of case, in more recent time attitudes have changed. It is now the case that the court requires strong justification for a late amendment. This is not only in the interest of the opposing party but also consonant with the interests of other litigants in other cases before the court and the court's duty to allocate a proportionate share of the court's resources to any particular case. Where a new issue arises which is not foreshadowed in a statement of case, a party needs the court's permission to advance it. The court is then faced with a discretionary case management decision, to be exercised in accordance with the overriding objective. 22. As Mr Ewart QC for HMRC opened the appeal to us it soon became clear that the lack of pleadings meant that the parties disagreed about what was the scope of the trial; what were the issues that the judge had to decide; whether points had or had not been raised; whether or not they could be raised on appeal; and even what the judge had decided. This is no way to conduct litigation involving millions of pounds. We were told that this unacceptably cavalier approach to pleadings was a common feature of this kind of litigation. It must stop.”
[78]I regard those paragraphs, in themselves, as adding little to what has already been cited and identified in this judgment: although, as in the August judgment, reference is made to the modern tendency of the Court to refuse amendments simply because they are sought to be made very late and to require strong justification for permission being granted for them in such circumstances.

C4 Submissions on behalf of Mr Lindsay

[79]Mr Hurst submitted, firstly, that neither Mr French/Mr Heaphy, nor Mr O’Loughnane, had pleaded consent or estoppel. All that Mr O’Loughnane had pleaded was that Mishcon de Reya accepted that Mr O’Loughnane could grant charges in the ordinary course of business but they had not accepted that Mr O’Loughnane was carrying on any business which would enable Mr O’Loughnane to grant charges within its ordinary course in order to fund legal costs, i.e., Mishcon de Reya’s acceptance was meaningless because the relevant situation could never arise, simply because Mr O’Loughnane was not, himself, carrying on any business. I held that Mr O’Loughane was himself carrying on any business and so that he could not have granted any charges in the ordinary course of such within the meaning of the paragraph 11 of the WFO exception (see paragraph 289 of the August judgment).[80]Secondly, that Mr French and Mr Heaphy had failed to plead consent or estoppel in either their defence or their rejoinder. In fact, they had rather advanced statements that they were not asserting such matters but that Mr Lindsay was, and which was clearly nonsense.[81]Thirdly, that while the question of whether the letter of 23 December 2009 contained a consent was included within the list of issues, that meant only whether it contained any simple express consent to the equitable charges and did not extend to any question of whether there was given a general consent to the equitable charges so long as they were “legitimate” or as to whether the equitable charges were, in fact, “legitimate”.[82]Fourthly, that Mr French and Mr Heaphy had failed to respond to the notice to admit facts or a preceding request for further information and, therefore, had actually passed up opportunities to seek to plead these cases.[83]Fifthly, that the claimant was prejudiced by this absence of pleading in relation to the 23 December, 2009 letter, and where the defendants’ contentions were only being raised at or might only be allowed to be raised only at a very late stage, because if they had been raised earlier: firstly, Mr Lindsay would have located and relied upon a letter of 30 April 2009 (which I will call the “April 2009 letter”) sent by Mishcon de Reya to BWB and which would appear in sequence between that of 27 April 2009, which I refer to in paragraph 45 of the August judgment and that of 1 May 2009, which I referred to in paragraph 46 of the August judgment.[84]Mr Hurst says that this April 2009 letter has only recently been obtained from Mishcon de Reya, and said that the importance of obtaining such correspondence was only learnt after receipt of my draft of the August judgment. Elements of it read as followse:
“As regards to your client’s request at paragraph 6.1 of your letter of 27 April 2009, we confirm that our client has no objection to your client’s father-in-law” – that is to say, Mr French – “lending money to your client to pay for his legal expenses. Nor does our client have any objection to your client obtaining a loan secured by a charge of the equity of Beacon Hill, pending your informing us (1) how much your client’s father-in-law will be lending to your client; (2) on what terms as to the loan as to the security and (3) how much the loan secured by the charge over the equity in Beacon Hill will be and who the parties to this loan will be.” “We refer you to paragraph 11.1 of the freezing order in this regard and also, to well-known authorities such as Cantor Index Limited v Lister. As regards your client’s request that other parties make loans to your client in order to meet his legal expenses, we request that prior to agreeing to enter into any such loan agreement, you inform us who the third parties are and the amount of the loans they propose to make. Again, we refer you to paragraph 11.1 of the freezing order in this regard.”
[85]Mr Hurst points out that it seeks information and also only relates to Beacon Hill and not the properties and refers to paragraph 11.1 of the WFO. I note that it, like the 23 December 2009 letter, does not say that, without Mr Lindsay’s express consent as opposed to non-objection, any such charge would be in breach of the worldwide freezing order and invalid because Mr O’Loughnane was not carrying on any business and, therefore, it would not be a transaction entered into in the ordinary course of business.[86]Secondly, Mr Hurst submits that Mr Lindsay would have located and relied upon a set of internal notes made by Philippa Rees, a solicitor of Mishcon de Reya, who was the relevant fee earner acting for Mr Lindsay in relation to the litigation against Mr O’Loughnane, which notes are dated 23 December 2009. Those notes, Mr Hurst evidence that(1) that the intention behind the 23 December 2009 letter was to say that Mr Lindsay was not consenting to the equitable charges but rather that he could not object to them;(2) Ms Rees’s thinking was that if Mr Oakley of BWB, was asserting that the equitable charges were being granted by Mr O’Loughnane “in the ordinary course of business”, then that must be right and, therefore, Mr Lindsay could not object.[87]I note here that Ms Rees and Mishcon de Reya, as well as Mr Oakley and BWB, knew the relevant facts; that is to say that the underlying claims being made by Mr Lindsay against Mr O’Loughnane were for fraudulent misrepresentations made by Mr O’Loughnane on behalf of Global and FX, and not in relation to any business being carried on by Mr O’Loughnane, and so that, in law (see paragraph 289 of the August judgment), the equitable charges were not and could not have been within the ordinary course of business exception.[88]Mr Hurst came close to accepting that both Ms Rees and Mr Oakley misunderstood what was meant by the “ordinary course of business” exception in the context of the subject claim when writing their 2009/early 2010 correspondence.[89]In fact, it seems obvious to me that that was the case as both seem to have either asserted or accepted in the correspondence that the equitable charges, assuming that they were genuine and on commercial terms, fell within the ordinary course of business exception. Indeed, that is why Ms Rees advised Mr Lindsay that Mr Lindsay had to consent, which advice Mr Lindsay accepted, although Ms Rees was to phrase the 23 December 2009 letter in the way that she did i.e. that the equitable charges were only permissible if they were “legitimate transactions”. Mr Oakley was, of course, in his letter of 22 December 2009, setting out his understanding and apparently seeking certainty.[90]Thirdly, Ms Rees felt that the letter from Bates, Wells & Braithwaite of 22 December 2009 seeking a specific consent was something of a scam, and that what Mr Oakley was actually trying to do was to use a hoped for refusal of consent to the equitable charges to form the basis of an application to vary the WFO, which application would lead to potential timing difficulties and a vacation of the then listed trial, a vacation which Ms Rees and the claimant’s side very much did not wish to occur. Mr Hurst said that Ms Rees was, therefore, keen to assuage Mr Oakley’s concern and to say that no application to vary was required, and Ms Rees framed the 23 December 2009 letter accordingly.[91]I note that, if it is correct that an aim of the 23 December 2009 letter was to achieve the objective of ensuring that no application to vary the WFO was made by Mr Oakley on behalf of Mr O’Loughnane, that involved assuaging Mr Oakley’s asserted concern that the equitable charges could amount to a breach of the worldwide freezing order; but where Mr Lindsay’s case is now that an application was essential if the equitable charges were not to amount to a breach of the worldwide freezing order and were to be valid. Mr Hurst says that that inconsistency does not matter because Mr Oakley and Mr O’Loughnane would never have made any application to vary the worldwide freezing order in any event.[92]Fourthly, Mr Hurst asserts that Mr Lindsay would have made further inquiries of Mishcon de Reya to find if anything else had passed between Mishcon de Reya and BWB relevant to the question of consent, in particular in December 2009 and in January 2020, for example, a telephone call; albeit Mishcon de Reya had not provided any notes or record of such before or, indeed, when requests were made to them, after my draft August judgment, or, indeed, after the handing down of the August judgment itself, while they had provided the previously omitted April 2009 letter and the 23 December 2009 notes.[93]Fifthly, that Mr Hurst would have sought to cross-examine Mr Oakley with regards to what had happened and Mr Oakley’s own thinking, but that he had decided not to seek to cross-examine Mr Oakley at the start of the trial because consent and estoppel had not been pleaded.[94]Mr Hurst asserted that the claimant had been prejudiced by the failure to plead estoppel(a) for the reasons given above, which Mr Hurst contends are as material to estoppel as to consent;(b) because those materials would be all the more important in relation to the question as to whether or not there had been any reliance on the 23 December 2009 letter.[95]Mr Hurst said that he would have wished to contend that Mr Oakley was confident that the grant of the equitable charges were “in the ordinary course of business” and so would have placed no reliance on 23 December 2009 letter and would have just acted exactly as he did, even if Mishcon de Reya had used words only to the simple effect of “We do not consent; we contend the equitable charges cannot be permitted under the exceptions to the WFO; for their grant not to be a breach of the WFO, you must apply to the Court”.[96]Mr Hurst said that even if Mishcon de Reya had said that and only that, Mr Oakley would have ignored it and no application would have been made. He asserted that Mr Oakley’s statement in the 22 December 2009 letter that an application would be made in the absence of consent was a mere empty threat, effectively trying matters on to see if in some way or other some consent could be extracted. Mr Hurst said that he had himself had had a private conversation with Mr Oakley, and in which Mr Oakley had said that Mr Oakley had believed that the equitable charges were transactions “in the ordinary course of business”.

C5 Submissions of the French Estate and Mr Heaphy

[97]Mr Pryce responded to submit, firstly, that he had pleaded the consent/estoppel point. He said that flowed from the assertion in paragraphs 46 and 47 of the amended points of defence that the equitable charges were “appropriate security”. He said that Mr O’Loughnane’s paragraphs, in particular, paragraphs 94 to 98 were unclear but could be seen as taking the consent point. Secondly, that, in any event, it was obvious to all, including the Court and Mr Lindsay’s side, that Mr French and Mr Heaphy were advancing a case that there had been consent or its equivalent; that is to say an estoppel. He said that this issue was raised and dealt with in Mr Lindsay’s own evidence; and that both parties had raised it in their opening material for the trial, and that, at that point, it was not objected to by Mr Hurst. Indeed, Mr Hurst had gone through the correspondence in detail, including with regards to the question of consent without making any suggestion that his side was, in some way, being ambushed.[98]Thirdly, that the April 2009 letter could (and should) have been obtained in any event for the trial, as it was part of the series of correspondence that Mr Hurst himself relied on, but, in any event, there was nothing in it which should lead me to a different conclusion as a matter of construction of 23 December 2009 letter.[99]Fourthly, in relation to the Ms Rees’s 23 December 2009 notes;(a) they were inadmissible as a matter of construction of the 23 December 2009 letter and(b) in any event, they supported the construction which I had given to it.[100]Fifthly, that it was fanciful to suggest that anything else could exist in any form in relation to correspondence or telephone call, notes, or the like and that the claimant, himself, Mishcon de Reya and Bates, Wells & Braithwaite had all gone through what had occurred and provided what they had.[101]Sixthly, in relation to Mr Oakley, that when Mr Oakley had attended at trial, firstly, the parties had agreed that they would not call him to give evidence because Mr O’Loughnane was asserting privilege, and all had accepted that that assertion would prevent Mr Oakley answering questions to any material extent. That agreement and a mutual acceptance was at a point in time when Mr Hurst knew full-well that Mr Pryce was taking the consent and estoppel points. Secondly, it was unreal that Mr Oakley could have been expected to remember his thinking or speculate on what he might have done some 14 years before. Thirdly, that Mr Hurst cannot rely on some oral unrecorded conversation which he, himself, had had with Mr Oakley.[102]Seventhly, that in any event,(a) the documents and Mr Oakley’s letters speak for themselves and(b) if Mishcon de Reya had contested the granting of legitimate equitable charges or had sought to take the point that Mr O’Loughnane was not carrying on any business for the equitable charges to be granted in its ordinary course or had said that the grant of the equitable charges would be a breach of the worldwide freezing order, Mr Oakley would have had to have informed each and all of Mr O’Loughnane, Mr French and Mr Heaphy of that and which would have resulted either in there being an application to the Court or the further loans not being made. Therefore, reliance on Mishcon de Reya’s letter and detriment were simply obvious and it is unreal to suggest that everyone would simply have ignored a pure refusal to consent from Mishcon de Reya.

C6 Submissions of Mr O’Loughane

[103]Mr O’Loughnane contended that, at paragraphs 94 to 98, in particular, of his points of defence, although it seemed to me that he was referring to the entire section of the defence, he had made clear that he was asserting that Mishcon de Reya had agreed that Mr Lindsay could not and would not object to these equitable charges and accepted that they would be valid and, therefore, that he had pleaded the points and put them in issue.

C7 Responsive submissions on the part of Mr Lindsay

[104]Mr Hurst responded, firstly, to repeat his reliance on CPR 16.5; secondly, to say that Mr O’Loughnane thought that the equitable charges were in law “in the ordinary course of business” and that all that Mr O’Loughnane had pleaded was that Mishcon de Reya were giving an acceptance, not that they were giving a consent; thirdly, that if it had been pleaded, the estoppel case would have required Mr Oakley to be called and cross-examined and that Mr Hurst would, in those circumstances, have submitted that privilege had been waived or that the inequity exception applied to disallow it but that Mr Hurst himself had not bothered to go down such a course because the consent and estoppel points had not been pleaded.[105]Fourthly, he said that he would also have called Ms Rees, if those points had been pleaded, as he contended that it was important what it was in Ms Rees’s mind. He, therefore, submitted that his side had been prejudiced by a failure to plead.

C8 Discussion

[106]I have balanced all these materials and the parties’ various submissions before me and applied the overriding objective and I do not regard it as right to reopen my judgment on these issues.[107]My reasoning is as follows; firstly, the principal of finality has very considerable weight. Here, there is nothing truly “new” which was not before me previously, except for the April 2009 letter and the December 2009 notes; neither of which I view as assisting Mr Hurst; and both of which could have been obtained before by Mr Lindsay and deployed, they being held by his own previous solicitors, and in circumstances where Mr Hurst had sought, in opening the trial, to take me through the material correspondence, and where I would, therefore, have expected all of the material correspondence to have been disclosed and to have formed part of that process. The April 2009 letter was, itself, clearly part of that series of correspondence and the December notes are sought to be relied on by Mr Hurst in relation to it. In all those circumstances, it seems to me that it would require a great deal of weight from other material to overbear the importance of finality.[108]Secondly, I regard the material and arguments deployed before me at this hearing as more favouring my conclusions in the August judgment than being against them. I consider particular aspects as follows.[109]First, with regards to the question as to whether consent and/or estoppel were pleaded.[110]As to this, I agree with Mr Hurst that they were not pleaded by Mr French and Mr Heaphy. If anything, their pleading was simply that the equitable charges were “in the ordinary course of business”. I do not see the points of defence or points of rejoinder paragraphs as advancing either consent or estoppel. They are, at best, simply opaque. They do not even expressly say that Mishcon de Reya accepted that the equitable charges were in the ordinary course of business. I see there as being a non-compliance in relation to these points with CPR 16.5 and I note that Mr Pryce had opportunities to clarify the position; for example, although he had no obligation to do so, by voluntarily answering the notice to admit facts but which he did not do.[111]However, it seems to me that the position is rather different in relation to Mr O’Loughnane. Paragraph 94 of his statement of case, said that Mishcon de Reya “actually concede this point”. Paragraph 96 says that Mishcon de Reya accepted that he had a right to dispose of his assets in their ordinary course of business. Paragraph 99 states “it is denied that Mr O’Loughnane required the applicant’s consent as MDR had already conceded that the applicant’s consent was not required in their letter dated 23 December 2009 and went on to say, “It is unclear why the applicant claims in this paragraph that no consent could be given”.[112]Mr Hurst says that that is not a pleading that Mishcon de Reya accepted that the loans and equitable charges were in the ordinary course of business, but only that Mr Lindsay could not object if they were in the ordinary course of business; and, therefore, that the only pleading was that the equitable charges were in the ordinary course of business; that is to say, not a pleading that Mishcon de Reya had accepted that they were in the ordinary course of business.[113]I think that, especially where Mr O’Loughnane was and is a litigant-in-person, those contentions are unduly restrictive of these particular paragraphs and, in particular, paragraph 99. That expressly says that Mishcon de Reya conceded that their consent was not required to the equitable charges. In my judgment, a reasonable reader would construe and interpret that as an assertion simply that Mishcon de Reya had agreed that the equitable charges would not be a breach of the worldwide freezing order equivalent to a grant of consent. Alternatively, if that is wrong, the reasonable reader would construe and interpret it as an assertion that Mischon de Reya had agreed that a grant of the charges by Mr O’Loughnane would be in the ordinary course of business. Those consents and agreements only being so long as the equitable charges were “legitimate”, meaning “on commercial terms” as I have held they were on their true construction and effect. It does seem to me that Mr O’Loughnane had raised the consent point and that that is sufficient for the consent point to be in issue in the trial. In my judgment, Mr O’Loughnane would not even require permission to amend, although, if it was required, I would grant it in all the circumstances bearing in mind the degree to which he had raised the point and the other matters relating to its having been raised (as set out above).[114]Although that is Mr O’Loughnane’s pleading and not a pleading on behalf of Messrs French and Heaphy, it seems to me that this matter is a further reason as to why it would be just to grant Mr Pryce permission to amend, namely because the matter was already in issue on another party’s pleading.[115]Secondly, in any event, these aspects were clearly in issue from the start of the trial in a number of ways.[116]First, in my judgment, Mr Hurst himself put the question as to whether the 23 December 2009 letter gave a consent in issue by both his own case summary and his list of issues (see above). I do not agree that I should limit what was set out in the list of issues in the way that Mr Hurst says. In my view, a consent is a consent, even if it is conditional, and the list of issues simply frames the question of consent being given by the 23 December 2009 letter as an issue without being in some way confined as Mr Hurst submitted.[117]In any event, once there has been raised whether, and the Court has determined that there is, some form of consent in the letter, that it seems to me must lead and carry the Court on to the obvious question of why that consent was not sufficient; that is to say, to the question as to whether or not the equitable charges were “legitimate”, and which I had the full material to consider and did consider and rule upon in the August judgment.[118]Second, I note that Mr Pryce also put the question as to whether the 23 December 2009 letter included consent as an issue in his own list of issues and referred to it as such in his chronology. It, therefore, seems to me that there was, effectively, a consensus from all the parties at the start of the trial, that whether or not the 23 December 2009 letter contained a consent was an issue for the Court to decide, and it seems to me, that Mr Hurst should not be able to resile from that.[119]Third, in any event, those points are additional to the remainder of the relevant events of the trial relating to how Mr Pryce, throughout, advanced the points and Mr Hurst engaged with them. I have set out in more detail above what I had already covered and considered in paragraph 297 (vi-xi) of the August judgment. Insofar as I did not reference events which I have set out above relating to the raising of these issues in the August, those additional matters simply relate to both Mr Hurst and Mr Pryce either raising the points or engaging with them, and which, it seems to me, simply add further to support the conclusion to which I came in the August judgment.[120]Fourth, it is correct that, at one point in the 22 March closing submissions hearing, Mr Hurst asserted that the points were not pleaded. However, the position remains that(i) both sides had raised this as an issue for the Court to determine, prior to the trial starting;(ii) the trial had proceeded with the points being fully engaged with; and(iii) the pleading issue only featured briefly within the closing submissions.[121]Fifth, I reject any suggestion that these points were simply raised by me and not by Mr Pryce and Mr O’Loughnane (see the history which I have set out above).[122]In any event, even if this aspect had started with a suggestion from me, Mr Pryce clearly picked it up and advanced it; and Primeo only states that it is wrong for the judge to rule on something they have themselves suggested if the relevant party(ies) had decided not to adopt and advance the matter themselves[123]Thirdly, I do not see the material sought to be introduced by Mr Hurst as being either relevant to or assisting Mr Lindsay’s case to any meaningful degree.[124]As far as the April 2009 letter is concerned, it may well form part of the factual matrix for the construction of the 23 December 2009 letter. However, it says that Mr Lindsay has no objection to Mr French lending money to be secured on Beacon Hill.[125]In those circumstances, I do not see how it can be used to advance a contention that the 23 December 2009 letter does not mean that Mr Lindsay accepts that Mr French and Mr Heaphy can be granted equitable charges over the properties. In fact, it seems to me that it supports Mr Pryce’s and Mr O’Loughnane’s construction arguments, as it seems to make clear that the granting of equitable charges over properties for funding legal expenses (and living expenses) would not be a breach of the WFO.[126]With regard to Ms Rees’s December 2009 notes, I do not seem them as being admissible in relation to the construction of the 23 December 2009 letter. They were not disclosed to BWB at the time, and they were simply a record of Mishcon de Reya’s internal thinking. They do not form part of the factual matrix of the 23 December 2009 letter. So far as they show what was Ms Rees’s thinking, that is irrelevant to construction. The parties’ subjective intentions do not affect the construction which a reasonable reader would give to the document.[127]I also do not see Ms Rees’s December 2009 notes as being relevant to the estoppel argument. That argument depends on what was communicated between the parties and whether there was an objectively shared assumption; that being relevant to estoppel by representation or convention, and questions of reliance and detriment. That all depends on the construction of the 23 December 2009 letter, for which Ms Rees’s notes are irrelevant (see above).[128]Further, in any event, Ms Rees’s notes seem to me to support Mr O’Loughnane’s and Mr Pryce’s cases for the following reasons.[129]First, they seem to say that the intention of Mishcon de Reya was to communicate that Mr Lindsay accepted that he could not object to the equitable charges if they were on commercial terms. I have held that they were on commercial terms and that, if anything, supports the case that Mishcon de Reya were consenting.[130]Second, Mr Hurst says that Ms Rees, as Mr Hurst says did Mr Oakley, thought that equitable charges granted by Mr O’Loughnane must be in the ordinary course of business for the purpose of the worldwide freezing order, even though that was wrong in law and that each wrote their letters on that basis and so, understood their own and the others’ letters. That would amount to the classic shared assumption which gives rise to an estoppel by convention. It is a factual paradigm, as was the case in ING v Ros Rocha [2011] EWCA Civ 353 and, indeed, in the previous seminal case of AIP v Texas Bank [1982] QB 84.[131]Third, Mr Hurst also said that Ms Rees feared that, if Mr Lindsay did object, that might mean that Mr Oakley would carry through his threat to apply to the Court for a variation of a worldwide freezing order which could result in an adjournment of the 2010 listed trial and that, because of that fear, Ms Rees said, in the December 2009 letter, that there was no need for Mr O’Loughnane’s side to make an application.[132]In circumstances where Mr O’Loughnane’s side did not then make any application, it seems, at first sight, to me, clearly unconscionable for Mr Lindsay now to turn around and say that, in fact, the equitable charges, assuming them to be “legitimate”, breached the WFO and that Mr French’s estate and Mr Heaphy can, therefore, take nothing from them.[133]Sixth, I see the prospect of Mr Lindsay locating any other relevant material, had consent/estoppel been pleaded out earlier, as fanciful. Mr Lindsay should have searched for such material anyway, bearing in mind the correspondence which was deployed, but, in any event, such a search would have been more than 10 years after the relevant events. Bates, Wells & Braithwaite have no relevant material; Mishcon de Reya have been asked for relevant material and have only been able to produce the April 2009 letter and Ms Rees’s December 2009 notes. There is nothing in the documents before me which would suggest any basis for there being any more such material.[134]Fourthly, I have considered Mr Hurst’s argument that he has been deprived of the opportunity to cross-examine Mr Oakley to say Mr Oakley would have so firmly believed the equitable charges to be being granted in the ordinary course of business, that he would have disregarded any objection by Mishcon de Reya; and, further, that there was a need for Mr O’Loughnane and Mr Pryce to call Mr Oakley to say that he had relied on the Mishcon de Reya 23 December 2009 letter.[135]As to this, it is irrelevant with regards to the question of whether there was consent under the worldwide freezing order; that is a question of construction and Mr Oakley’s subjective state of mind would be irrelevant.[136]Otherwise, I do not see Mr Hurst’s argument as having any substantial reality for the following reasons: first, the parties had agreed, when they had an opportunity to call Mr Oakley, that there was no point in doing so because of Mr O’Loughnane’s not waiving privilege. Mr Hurst knew that Mr O’Loughnane and Mr Pryce were saying that the 23 December 2009 letter did amount to a consent, and it seems to me that the parties were proceeding on the basis that they were saying that, and the parties simply took a joint decision that none of them would call Mr Oakley as there was no point.[137]Second, in any event, Mr Oakley had said in the 22 December 2009 letter that his side would issue an application unless Mishcon de Reya accepted, on behalf of Mr Lindsay, that the granting of the equitable charges were permissible. Mishcon de Reya responded by the 23 December 2009 letter, sent within a time limit laid down by Mr Oakley, to say that the equitable charges were permissible (as long as they were legitimate) and to say that an application was not necessary and would be resisted. Mr Oakley then did not make any application. It seems to me, in those circumstances, it was obvious that Mr Oakley was relying on the 23 December 2009 letter when not having his side make an application and, indeed, with simply allowing the equitable charges to proceed without further comment.[138]Mr Hurst says that this was all a bluff by Mr Oakley and that he would have managed to have Mr Oakley admit so in cross-examination because Mr Oakley simply believed that it was obvious that the grant of the equitable charges was and would be in the ordinary course of business.[139]However, as to this my views are as follows. I do not see any real basis for contending that this was simply a bluff on Mr Oakley’s part and Ms Rees, for one, was clearly worried that Mr Oakley did intend to make an application, unless his concerns were suitable assuaged. I also I do not see there as being any real prospect that Mr Oakley would have said this in a cross-examination, even if privilege could have been overcome. The letters, in particular that of 22 December 2009, simply speak for themselves, and are not consistent with a mere bluff. I also do not see how cross-examination could reliably extract such an admission. Mr Oakley would be being asked to remember as to his particular thinking and speculate as to what he would have done in relation to events much more than 10 years before, when answering Mr Hurst’s questions. Further, it seems to me that this is a classic situation where one party – the recipient of a representation does what the representor has asked, that is to say, here, not made an application, that the Court would infer reliance; see, for example, such cases as Wayling v Jones 69 P&CR 170.[140]In any event, if Mishcon de Reya had objected, or even if they had said nothing, it seems to me that it is clear that Mr Oakley would have needed to report the risk that there was a breach (or a possible contention on the part of Mr Lindsay that there was a breach) of the worldwide freezing order by the grant of the equitable charges and any also any actual objection to others.[141]There would have to been such a report from Mr Oakley to Mr O’Loughnane. He was the client who was the subject matter of the worldwide freezing order and, if he breached it, he would be risking a committal application. Mr Oakley would have been under an obvious duty to make such a report.[142]However, it seems to me that Mr Oakley would also have had to report such matters to Mr Heaphy and Mr French. Mr Oakley had previously spoken to Mr Heaphy, to whom Mr Oakley had previously spoken and had said that the WFO existed but that the Heaphy Charge would be legal as stated in his evidence to me by Mr Heaphy (whose evidence I had accepted in general) was relying on this (see e.g. paragraphs 41 and 101(iii) and 292(i) of the August Judgment). Mr Oakley knew that Mr Heaphy would be the other party to the Heaphy equitable charge and potentially himself risk committing a contempt of Court and committal by entering into it. Mr Oakley likewise knew that Mr French was the other party to the French equitable charge and who would also potentially risk being a party to a breach of the worldwide freezing order and committal. Mr Oakley was the person on the O’Loughane side who was dealing with the transaction and its relationship with the WFO. It seems to me that Mr Oakley would have been under a clear duty (and if that is wrong then at least an highly arguable duty) to inform them of an objection of a risk if such appeared to exist.[143]It seems to me that both Mr Heaphy and Mr French, at least, would have been likely to respond to such a report from Mr Oakley, by saying they were not prepared to take such a risk without a protective order from the Court.[144]However, in any event, by Mishcon de Reya sending the 23 December 2009 letter, Mr Heaphy and Mr French have been deprived of a report (and if that is wrong, then the high possibility of a report) from Mr Oakley, which would have enabled them to take an informed decision as to whether or not to take such a stance. It may well be that the same would apply with regards to Mr O’Loughnane, although I am more concerned with Mr Heaphy and Mr French here.[145]Further, if Mr Oakley had not informed Messrs Heaphy and French in those circumstances, it seems to me that they might well have had some right of action against Mr Oakley, who might very well, in those circumstances, have owed them a duty of care.[146]On the other hand, if my construction of the 23 December 2009 letter is correct (and which is the basis upon which I am proceeding), Mr Heaphy and Mr French, as a result of the sending by Mischon de Reya (for the Mr Lindsay) of the 23 December 2009 letter, would not (or at least it would very arguable that they would not) have any right of action against Mr Oakley because Mr Oakley would not, at first sight, have acted with an absence of reasonable care (he taking the reasonable view that Mr Lindsay was consenting to the equitable charges, or, at least, that there would be no breach of the WFO as long as the equitable charges were “legitimate” i.e. on commercial terms). Mr Oakley would be (at least very potentially) not negligent, even if he believed that the equitable charges were being granted in the ordinary course of business, because a reasonable solicitor could take the view that there was a consent or a sufficient acceptance by Mr Lindsay’s side that there would be no breach.[147]Thus the sending of the 23 December 2009 and its contents (and representations and consequent shared assumption) did cause a detriment to Mr French and Mr Heaphy as they lost (or at least had substantially diminished) the potential for a right of action which they would otherwise have had (in the absence of such a report as I have envisaged above) against Mr Oakley/BWB.[148]It seems to me that one way or another, there is a clear detriment which has been suffered by Mr Heaphy and Mr French as a result of the Mishcon de Reya December 2009 letter, assuming that my construction of it is correct.[149]As I say above, I consider that Mr O’Loughnane raised sufficient in his statement of case to enable him and by extension, Mr Pryce, to argue the questions of consent, etc., flowing from the December 2009 letter at the trial. However, even if that is wrong and as Mr Hurst accepted, in my view rightly, I would have a discretion to allow an amendment before judgment and even, for that matter, potentially after it, albeit subject to the case law principles which I identified above and in the August judgment.[150]I considered the question of amendment fully in the August judgment and decided that I would permit it, notwithstanding Mr Hurst’s objections and the fact that I was considering amendment on the basis that permission was only being sought very late.[151]I regard the further material and submissions which I have considered in this judgment as more tending to support my allowing amendment than refusing it and it seems to me that I should confirm my decision to allow amendment where it is required. That is to say, by Heaphy and French (who had not pleaded the points) and, if I am wrong with my regards to my construction of Mr O’Loughnane’s pleading, by Mr O’Loughnane,[152]That is for all the reasons given above but, in particular; firstly, as I see these points as having been raised before trial and during the trial, including by Mr Hurst, at least as far as consent is concerned. Secondly, I do not see there as being any real prejudice to Mr Lindsay’s side which is not capable of being compensated for by costs. Thirdly, I see it as being justified in the interests of justice including where:(a) the issue of consent is one of pure construction and(b) the issue of estoppel seems to me to be essentially parasitic on the construction of the December 2009 letter, and where this is all in the context that Mr Lindsay’s side is asserting that the equitable charges are invalid because they amounted to breaches of the Court’s worldwide freezing order and the Court, in order to guard the integrity of its own process must, it seems to me, always consider such an assertion carefully and be hesitant to exclude relevant material and arguments.[153]I add that, in paragraph 310, of the August judgment, I said that, if my construction of the 23 December 2009 letter was wrong, I would not have enforced the equitable charges. I remain of that view.[154]In my judgment, it is my construction of the 23 December 2009 letter which translates best to a finding of consent but if not leads to an estoppel. However, if my construction of the 23 December 2003 letter is correct, but it was not so translated and did not so lead, it does seem to me that that would of itself be a substantial reason, applying the principles set out in Patel v Mirza not to refuse to enforce the equitable charges. That in itself is another reason as to why it was essential to construe the 23 December 2009 letter even if only in relation to Mr Lindsay’s own case. However, that point does not arise in the light of my other determinations as to grant of consent and estoppel and pleading and permission to amend and, therefore, I merely say that it seems to me that it would be a substantial reason not to refuse to enforce the equitable charges if I was wrong with regards to those other points apart from as to the true meaning of the 23 December 2009 letter.[155]For all of those reasons, I will not reopen my judgment on the consent and estoppel and 23 December 2009 and WFO points. I will return to the question of permission to appeal in due course. D Mr Lindsay’s application for permission to amend and to re-open the August Judgment based on the French bank statements disclosed during the trial D1 Submissions made on behalf of Mr Lindsay[156]Mr Hurst’s second submission that I should re-open the August Judgment is that I was wrong in paragraph 209 of the August judgment to not deal in detail with Mr Hurst’s argument that Mr French – this not applying to Mr Heaphy – had received money wrongly taken from the Global bank account by Mr O’Loughnane, and had effectively used that money to fund the loans underlying the French equitable charge, and that, therefore, in those circumstances, the French equitable charge should be unenforceable.[157]Mr Hurst submitted as to this, firstly, that he had applied during the trial to raise such a case with a supportive draft statement of case. Mr Hurst says that I never resolved that informal application. Secondly, that, although Mr Hurst had only advanced that argument at that point in time, this was because Mr French’s side had failed to produce relevant bank statements, notwithstanding various orders from me to do so. Mr French had failed to go to banks to get statements from 2007 to 2010, even though, when Mr Hurst, himself, had contacted those banks, they said they would provide the statements.[158]Thirdly, that the bank statements, together with a homemade written calculation document disclosed by Mr French, revealed the following matters.[159]First, that in 2008, Mr French and his wife Barbara French, owned a property, 18 Oulton Crescent, and wanted to buy another property, Brookside. However, the timing was such that they needed to buy Brookside before they could sell 18 Oulton Crescent. Therefore, Mr French asked Mr O’Loughnane and Penny O’Loughnane for money. Penny O’Loughnane provided a small loan. Mr O’Loughnane procured a payment of £102,300 from Global’s client account on 14 July 2008 to Mr French, purportedly as repayment of an investment by Mr French in a Dubai venture but where Mr French had no entitlement or, at least, no entitlement for such a large sum. Mr French had used that money to buy Brookside in August 2008. Thereafter, Mr French and Barbara French had sold 18 Oulton Crescent and, from its proceeds, Mr French funded the various loans to Mr O’Loughnane and also other payments to Penny O’Loughnane which effectively repaid to Mr O’Loughnane the 14 July £102,300 advance.[160]Second, that the payment from Global’s client account was a fraudulent breach of trust by Mr O’Loughnan;, tantamount to theft as those monies belonged beneficially to Global’s customers. Even if Mr French had believed that what happened was legitimate, he was only in the position of a volunteer.[161]Third, that, therefore, Mr French had effectively received stolen money and could not rely on his own wrong in doing so to use the French equitable charge to defeat Mr Lindsay.[162]Alternatively, that it is simply not equitable to allow the French equitable charge to be enforced; Mr French lacks clean hands and, in any event, equity would not assist Mr French in these circumstances by providing specific performance or otherwise.[163]Fourth, Mr French’s estate could not rely on any entitlement of Mr French with regards to the asserted Dubai transaction as,(1) no sufficient proof of it existed;(2) any money from it, even it had ever gone in to the Global client account, which Mr Hurst disputed, went into it at a time when subsequent transactions on that account, which had involved the amount standing to its credit being reduced to zero at some point, had meant that that money had gone out of the client account at some point; and so, by 14 July 2008, what was then within the Global account was money beneficially owned only by other July customers of Global (and not Mr French) which monies Mr O’Loughnane had unlawfully caused to be paid to Mr French to fund the Brookside acquisition.[164]Fifth, that Mr French could not rely on the fact that Mr O’Loughnane had previously paid money from Dubai transactions to Global on the basis that that money was to remain beneficially owned by Mr O’Loughnane. That is because that money paid in by Mr O’Loughnane had been paid out by Global before 14 July 2008 so that the client account, even if that money had ever gone into it, had previously been reduced to zero; and again so that, by 14 July 2008, the money which then was in the client account was beneficially owned by other customers and not by Mr O’Loughnane.

D2 Submissions on behalf of the French Estate

[165]Mr Pryce submitted, firstly, that I had already rejected this contention in paragraph 209 of the August judgment, even if I had made a dating error in it. He again relied on finality. Secondly, that until Mr Hurst set all this out at the hearing, Mr Pryce was unclear what Mr Hurst was saying and that Mr Pryce and also, during the period that he had capacity to deal with the litigation, Mr French had been prejudiced. Mr Hurst should have pleaded his case, at least to the extent that he could have done earlier, so that it could then have been engaged with. Thirdly, that there was no failure to disclose but, rather, Mr French’s side had asked the bank for statements and were told they were not available. They had no duty to press the banks. The facts that the banks were able to provide the statements and that they told Mr Hurst so, and that the banks eventually provided statements piecemeal was a matter simply for the banks. Mr French had no duty more than to ask once and accept a response that the statements were not available. Fourthly, that Mr Hurst’s case would fail anyway as Mr Lindsay cannot rely on either(i) payment out of money from Global client accounts at a point when Mr Lindsay was not a customer who had provided money for which he had not yet received foreign exchange or(ii) payments of money to Mr O’Loughnane (by way of the loans from Mr French) from the sale proceeds of 18 Oulton Crescent where the money from the Global client account had gone to the Brookside transaction.

D3 Submissions of Mr O’Loughnane

[166]Mr O’Loughnane submitted, firstly, that the Global account was not a client account. Secondly, that he had sold a Dubai property in which Mr French had invested and had an entitlement; thirdly, that he had paid money to Global retaining the beneficial interests in that money (so that Global did not acquire any beneficial interest in it), and properly paid it out to Mr French doing so in relation to Mr French’s entitlement; and fourthly, that he disputed that Mr French had borrowed any money at any point from Penny O’Loughnane.

D4 Responsive submission on behalf of Mr Lindsay

[167]Mr Hurst responded to those submissions to say, firstly, that the law in relation to client accounts is strict; they are trust accounts, they cannot be used except to pay money received in from a customer to or for the purposes of paying money to that customer, and any mis-applied money can be subjected to a tracing remedy, including into funds or property into which the mis-applied money has been mixed. Secondly, that this should mean that equity would not grant specific performance of the contracts created by the French loan agreement or the French equitable charge. Thirdly, that Mr French should not have the benefit from what was, effectively, stolen money and that even the money from the Dubai transactions probably represented proceeds of money stolen previously from FX and/or Global. Fourthly, even though Mr Lindsay could not trace himself, and I note that Mr Hurst, in the process of written submissions before the hearing and at the hearing, accepted that Mr Lindsay could not advance a tracing case of his own, equity would not allow Mr French and his estate to have or enforce an equitable charge in these circumstances. Fifthly, that there should be some sort of general or global restitutionary right or remedy to deprive Mr French of any benefit he might have from this history and, as part of that, Mr French should not be able to enforce the French equitable charge against Mr Lindsay’s in priority to Mr Lindsay’s charging order. D5 Discussion D5i Introduction

D5 Discussion

[168]I bear in mind that the general approach of the Court in granting permission to amend is that, firstly, it will require an amendment to be properly formulated and to disclose a case which is reasonably arguable; and secondly, that if that is the case, the Court will still, in the case of a late amendment, regard the party seeking to amend to be under a heavy burden to justify permission in the interests of justice as part of the question of whether the Court should exercise its discretion to permit amendments.[169]Here, I consider that I should refuse permission on the basis that the case which Mr Hurst seeks to advanced is not reasonably arguable and, in any event, that if I did grant permission, I should reject that case, in effect, as a matter of law; and therefore, that, in all the circumstances, I should not reopen the August judgment (except to correct the dating errors within it – see below).[170]I have again applied the overriding objective and considered all the material and submissions. My essential reasons are as follows.

D5ii Considerations of Finality and the Facts

[171]Firstly, I have again borne in mind finality. However, its weight, it seems to me, is here limited, for the following reasons.[172]First, the dates in paragraph 209 of the August judgment are wrong. In fact, it is common ground and, in any event, as proved and clear from Flaux J’s judgment, that Mr Lindsay paid money to be converted into foreign exchange and had been paid the full amount then due to him for such payments in June 2008. The £102,300 was paid out from Global to Mr French in July 2008. Mr Lindsay only paid more money in to be converted into foreign exchange, first in August 2008 for which he was to receive the appropriate foreign exchange, and then in September 2008, for which he was not to receive the appropriate foreign exchange (and which last monies formed the basis of his claims for damages in these proceedings).[173]Although the same substantive point would exist – that is to say that Mr Lindsay could not have any beneficial interest in the money which was paid to Mr French as at that point, July 2008, Mr Lindsay was not owed anything by Global and Mr Lindsay’s money previously provided had already been used by Global as is stated in paragraph 209 of the August judgment - it does seem to me that that paragraph requires correction as to dates being those which I have just set out.[174]Second, I had only dealt in the August judgment with Mr Hurst’s argument on a limited basis as it was not entirely clear to me how it was being put. It has now been developed, it seems to me, to a much more considerable and understandable extent; albeit that it does seem to me that, even in the light of its full extent, my reasoning in paragraph 209 of the August judgment is both correct and in point; although the further development of Mr Hurst’s arguments give rise to an important second point, to which I will also cover in due course.[175]Secondly, Mr Hurst has deployed a powerful evidential case based on the disclosed bank statements and Mr French’s written note of how Mr French and Barbara French proposed to fund their acquisition of Brookside, to seek to prove the following facts.[176]First, that Mr French and Barbara French could not afford to purchase Brookside without the proceeds of 18 Oulton Court, which was not then sold, or, in the absence of those proceeds, the £102,300.[177]Second, that the £102,300 came from Global’s account.[178]Third, that the Global account was a client account.[179]Fourth, that, although Mr O’Loughnane had paid substantial monies from Dubai to Global before July 2008, Global had already used those monies before 14 July 2008 so that, the monies which on 14 July 2008 were used to fund the 14 July 2008 £102,300 payment from Global to Mr French was money beneficially owned by various customers of Global.[180]I have noted as to this that Mr O’Loughnane contests the existence of any beneficial interest being vested in those customers who had previously made money to Global but had not yet received their foreign exchange (whom I will call “the July Customers” even if some of them might have provided monies in late June). His version of Global’s (and FX’s) trading structure, whether legitimate or not, was that they never used the money provided by an individual customer in order to purchase foreign exchange for that customer. Rather that they operated a pool system (i.e. where monies were received in and put into a common-pool and which was used from time to time to purchase foreign exchange (to be paid out to customers) and the expenses of and distributions from the company), more similar to one of debtor/creditor and a bank than one of trusts and beneficial interests. However, Flaux J held that Global’s terms and conditions and the actual structure was in law one of those accounts being trust accounts with customers having such beneficial interests (see, for example, paragraphs 20, 30 and 108 of Flaux J’s judgment, and which are binding on Mr O’Loughnane albeit not on Mr French).[181]However, it does not seem to me that those various July customers of Global could have included Mr Lindsay. Rather those various July customers of Global, who had the beneficial ownership of the monies then (14 July 2008) would have been those who, at that point, had paid money to Global which was the money then in the Global client account but had not yet – whether or not they were ever to do so – received the foreign exchange that was due to them. Mr Lindsay had received his foreign exchange in June 2008 and had not, by 14 July 2008, paid any further monies to Global. Further, at times the amount of money in the Global account had fluctuated down to zero. I think Mr Hurst, rightly in my view, accepted that to have been the case, but in any event I consider that it must follow as a matter of law from what is clear as a matter of fact.[182]Fifth, that Mr French used the £102,300 to fund the acquisition of Brookside and needed that £102,300 to cause such acquisition to take place.[183]Sixth, that Mr French and (his then wife, who subsequently died) Barbara French subsequently sold 18 Oulton Court and had money available from its proceeds.[184]Seventh, that Mr French used that money, from 18 Oulton Court, to fund the loans, the subject matter of the French equitable charge and also other payments, including some to Penny O’Loughnane, and that the total amount which Mr French paid over to or for the benefit of Mr O’Loughnane and Penny O’Loughnane was very similar, although not precisely identical, to a figure of £102,300.[185]Thirdly, it seems to me that there is substantial merit in Mr Hurst’s position and argument that Mr Lindsay was unable to earlier plead out a case based on Mr French’s need for the £102,300, and on Mr French’s only having been able to fund the relevant loans to Mr O’Loughnane because Mr French had been able to use the £102,300 to purchase Brookside so that he did not need to take the equivalent sum from the proceeds of 18 Oulton Court (for example, to repay some bridging loan which otherwise would have been needed to fund the purchase of Brookside had the £102,300 not been provided), until Mr Lindsay had received the various bank statements.[186]Fourthly, I am simply unclear as to what happened between Mr French’s side and the bank with regard to seeking the bank statements. While, generally, banks have to provide past bank statements to customers under data protection legislation, even if not simply as a matter of contract, the Courts, including myself sitting as a Judge, have considerable experience of being told that banks say to customers that they cannot find old records (even if it subsequently turns out that they can be located if an effort is made); and here the bank statements would have been over 10 years old at all material times. Unless and until they are severely pressed, I suspect because producing such material is regarded by them as being an administrative nuisance, banks often simply try to “fob off” such requests. In such circumstances, it is difficult to see why a litigant in the position of Mr French, in relation to an unpleaded claim, should regard even the orders I made as requiring them to do more than make an inquiry and accept a negative answer.[187]Mr Lindsay could, of course, always have made a third-party disclosure application against the banks under CPR 31.17. On the other hand, I lack any evidence as to what exactly Mr French and/or his solicitors said to the banks and when and what replies they received and where what Mr Pryce has told me, seems to me, to be very much a matter just simply of assertion.[188]Fifthly, I am further concerned that the amendment application was only made at the trial itself and where Mr Lindsay’s side had previously said, as they still do, that they are not saying that Mr Lindsay’s money had been used to fund the payments from Mr French to Bates, Wells & Braithwaite for Mr O’Loughnane’s legal expenses.[189]Sixthly, I also have to see all of this in a situation where Mr French was elderly at the start of the trial, and then lost capacity during it, before he could give evidence, and then died, and so that Mr French was unable to respond, at least fully, to this new case as it developed, although some form of intermediate response might have been possible.[190]In the above recited circumstances, I do see arguments both ways, for and against permitting these amendments should they raise an arguable case in law.

D5iii Discussion of the Legal Merits of Mr Lindsay’s arguments

[191]However, I do not the proposed amendments as raising an arguable case in law for two sets of reasons, both individually and together, and only one of which sets of reasons I identified in paragraph 209 of the August judgment. D5iii.a First reason for rejecting Mr Lindsay’s arguments – no beneficial interest of Mr Lindsay in the monies allegedly wrongly taken from Global[192]The first reason, and which I did identify in paragraph 209 of the August Judgment, is that the £102,300 was not in any way Mr Lindsay’s money and he had no beneficial interest in it. Mr Hurst accepts that, correctly in my judgment, in view of the timing (see above).[193]In those circumstances, Mr Lindsay can make no direct claim that, in some way, the £102,300 i.e. the money which on his case was wrongly paid out from Global and funded the transaction which is the subject matter of the French equitable charge, was money in which he was beneficially interest. If he had been able to do so, that might well have been a reason for holding that the French equitable charge could not be allowed to take priority over Mr Lindsay’s charging order, although the interests of other creditors of Global who had themselves had beneficial interests in that wrongfully taken (on this analysis) money would have had to have been considered, as it would not necessarily be obvious that Mr Lindsay should be able to obtain some form of priority over their rights to trace into the French Charge. However, I am not concerned directly with that situation of potential conflict between Mr Lindsay and such persons with beneficial interests, as Mr Lindsay has no beneficial interest which he can assert or rely upon in the monies which funded the French Loan Agreement and the French Charge.[194]However, Mr Hurst contends that Mr O’Loughnane effectively stole the £102,300 from Global and, therefore, that Mr French, even if he was innocent, received stolen money and, therefore, that Mr French lacks clean hands; and that, for that or other equitable reasons, Mr French should therefore not be able to enforce the equitable charge. He says that it would be wrong to allow Mr French, in those circumstances, to claim priority against Mr Lindsay’s charging order which charging order, itself, is based on a judgment debt obtained against the relevant thief, that is Mr O’Loughnane, and is a charging order obtained against the relevant thief’s assets; even if that charging order and judgment debt is based on a different financial obligation of Mr O’Loughnane owed to Mr Lindsay which does not relate to the £102,300.[195]I do not accept that as a matter of law.[196]There is no suggestion that Mr French was dishonest, and, in any event, I found as a matter of fact, on all the evidence, that Mr French was not dishonest. Mr French simply relied, innocently, on Mr O’Loughnane.[197]I do not see why, even if an innocent person is made a gift of property stolen by a thief, here Mr O’Loughnane, from one victim (which I will call “V1” and here is Global and certain of its July customers), by the thief and then, lends it back to the thief, supported by a charge over the thief’s own assets, that that should render the charge unenforceable against another victim of the thief (which I will call “V2” and here is Mr Lindsay).[198]That scenario is, it seems to me, to be in effect the highest point at which Mr Hurst’s factual case can be framed; and I will also assume that Mr French has provided no consideration for the £102,300 i.e. that Mr French had actually made no investment in the Dubai transaction, even though I have accepted Mr French’s evidence that Mr French thought that he had done so (although I have not determined) whether or not he had done so.[199]In that factual situation, it does not seem to me that it is inequitable for the innocent person (here Mr French) to rely on their equitable charge; they have provided property which they own in law, even if they (Mr French) might hold it beneficially for V1 (i.e. Global and the July customers) to the thief (Mr O’Loughnane) on the basis that it is a secured loan. It does not seem to me that that is any reason why they (Mr French) should lack clean hands, if they were not, themselves, dishonest. The fact of the theft has nothing to do with the contest between the innocent person (Mr French) and V2. It is simply, it seems to me, part of the history and I do not see that V2 (Mr Lindsay) can invalidate the equitable charge simply because the property had previously been stolen from V1 (Global and the July customers).[200]Moreover, for the equitable charge to be invalidated in those circumstances would be highly prejudicial to V1 (Global and the July customers). If V1 (Global and the July customers) still owns the stolen property beneficially, then V1 (Global and the July customers) would, in principle, be able to trace into the proceeds; that is to say the loan to and the security granted by the thief (Mr O’Loughnane) to the innocent person (Mr French). In my judgment, there is no reason why V1 (Global and the July customers) should be disadvantaged against V2 (Mr Lindsay) by the security being unenforceable. Further, if V1 (Global and the July customers) has a valid claim against the innocent person (Mr French), there is no reason why the innocent person should be unable to enforce the security so that they can use its proceeds to discharge any liability owed to V1 (Global and the July customers).[201]I do not see it as reasonably arguable that Mr Lindsay can use the case that Mr O’Loughnane stole the £102,300 from Global to defeat the French equitable charge where that £102,300 was not, on any basis, stolen from Mr Lindsay. If Mr Hurst is right as to the facts, it may mean that Global, by its liquidator can raise a claim, as possibly could the July customers whose money formed the sum in the Global account as at 14 July 2008, but those parties and cases are not before me.[202]Even if contrary to my judgment, Mr Hurst’s point was reasonably arguable (albeit wrong) as a matter of law and so that I was to allow an amendment, and even if I found the facts for which Mr Hurst contends, I would still decide against Mr Lindsay on this point of law for those reasons alone. D5iii.b Second reason for rejecting Mr Lindsay’s arguments – monies lent by Mr French were not the monies allegedly wrongly taken from Global but came from a different source[203]The separate and second reason why I think that Mr Hurst’s argument must fail in law, is because the monies which funded the loans secured by Mr French’s equitable charge came from 18 Oulton Court and not from Brookside.[204]This is an additional point which was not dealt with in paragraph 209 of my August judgment, as I did not then know of or understand the factual situation to be as now fully advanced by Mr Hurst. However, that again, in my judgment, seems to me, means that Mr Lindsay, even if Mr Lindsay had had a beneficial interest in the £102,300, which he did not, could not trace into the loans which are secured by the French equitable charge.[205]In my judgment, the mere fact that someone has a beneficial interest in an amount of money which a trustee applies to purchase property so that other money or property of the trustee is freed up and does not have to be used on such a purchase, does not permit the beneficiary to trace into that other money or property; that, in my judgment, is not how proprietary tracing works, which requires the property to be traced into different forms into which that property, not other property, has become.[206]Likewise, I do not see how such a factual situation could mean that Mr French lacks clean hands or that it is inequitable for Mr French to enforce the French equitable charge.[207]Again, I have sought to analyse Mr Hurst’s case from first principles. Here the situation is that the thief, Mr O’Loughnane, steals property from a victim (“the victim”) – and gives it to an innocent person, Mr French, who uses it to buy other property and so that the innocent person (later) has money of their own available, which otherwise they would have used to buy that other property, which other money the innocent person lends in the same amount as the original gift to the thief in return for a loan agreement and grant of equitable security.[208]In those circumstances, I do not see why it would be inequitable for the innocent person (Mr French) to enforce that security, even so as to claim priority over the victim’s claims against the thief. The victim’s remedy in that situation is to assert a tracing or restitutionary right against the innocent person in relation to their receipt of the stolen property and/or the property which the innocent person has acquired by use of the stolen property, and which new property is the form which the stolen property has then taken. That is an independent matter from the enforcement of the innocent person’s security.[209]Again, I have taken the highest version of Mr Hurst’s factual case and assumed that there was no actual investment by Mr French in the Dubai transaction, even though, as I have said, I have accepted Mr French’s evidence that he thought that he had done so. Applying the above analysis, even on that version of the facts, Mr Lindsay’s charging orders would and should not have priority over the French Charge.[210]However, that highest version of Mr Hurst’s factual case is not the actual situation before me and is not the subject matter of Mr Hurst’s intended amendment.[211]The situation before me, on Mr Hurst’s case, is a combination of both the hypothetical situations which I have analysed above; being that the thief, Mr O’Loughnane, steals property from the first victim, V1, Global and its July customers, and gives that property to an innocent person, Mr French, who uses it to buy other property and so that the innocent person, French, later has their own money available which otherwise would have been used to buy that other property and which other money the innocent person, Mr French, lends to the thief, Mr O’Loughane, on equitable security. I do not see why it is inequitable for the innocent person Mr French, to enforce that security to claim priority over a different victim, V2, Mr Lindsay, who has had different property stolen by the thief. There is simply no sufficient connection, in my judgment, to mean that the innocent person, Mr French, lacks clean hands or that it is in some way in equitable to enforce the French equitable charge to the prejudice of V2, Mr Lindsay.[212]Again, it would be highly unfair to V1, Global and its July customers, for the equitable charge not to be enforceable; for they would lose their rights, if any (and if they do not have any, that would render the result even less inequitable) to trace their property into that security. It would also be highly unfair to the innocent person (Mr French), who may have to pay out V1 (Global and its July customers) in relation to the stolen property, to also lose other property (that which was used to fund the loan and equitable charge) to V2 (Mr Lindsay), which had always belonged to them.[213]I, therefore, do not see Mr Hurst’s case, which he seeks to advance by amendment as reasonably arguable as a matter of law and further, even if it was reasonably arguable, and even if I found the facts from which Mr Hurst contends, I would still decide on these points against Mr Lindsay for all those reasons.[214]I add that I have considered case law and sections of Spry on Remedies and Goff & JonesonRestitution advanced by Mr Hurst. I do not see that it assists Mr Hurst in opposing my above conclusions.[215]As far as restitution is concerned, even if one could say on the facts asserted by Mr Hurst, that Mr French has been unjustly enriched, it does not seem to me that it is at the expense of Mr Lindsay (but rather, if at all, Global and its July customers) and I do not see why the law of restitution should mean that Mr French should not be able to enforce the equitable charge so as to have priority over Mr Lindsay’s charging order.[216]Further, and insofar as it matters, Mr French owes no restitutionary obligation to pay the £102,300 to Mr O’Loughnane. That money, if it did not belong to Mr O’Loughnane, belonged to Global and to its July customers. Mr O’Loughnane, in my judgment, has no right against Mr French to have that money paid to Mr O’Loughnane. Again, the position of Global and its July customers might be different, although they would be subject to numerous arguments, including under the law of limitation; but, most importantly for the purposes of this judgment, Global and its July customers are not parties to these proceedings or before me.

D6 Conclusion

[217]I, therefore, refuse permission to amend but as stated, that if I had granted it, I would still have decided substantively against Mr Lindsay for the reasons given. I, therefore, note that, while I regard the reasoning, subject to correction of dates, in paragraph 209 of the August judgment as being correct, the fact that Mr French used monies derived from 18 Oulton Court to lend to Mr O’Loughnane is an additional reason to come to the same conclusion (rejecting Mr Lindsay’s case) as set out in paragraph 209 of the August judgment. D7 Mr Lindsay’s assertion that the French bank statements show that Mr French was not lending money to Mr O’Loughnane[218]Mr Hurst, however, also seeks to rely on the bank statements, etc., analysis in support of his case that Mr French, by providing money for Mr O’Loughnane’s legal fees was simply repaying a debt or moral obligation that Mr French owed Mr O’Loughnane as a result of Mr French being paid the £102,300. I rejected this case in paragraph 210 of the August judgment, although, again, there is an incorrect date, in effect, by way of an implied reference to early 2008, when it should be to 14 July 2008, when the £102,300 was paid out of the Global account to Mr French.[219]Mr Hurst submits to me that the bank statement, etc., analysis shows total figures of money passing from Mr French to Mr O’Loughnane and Penny O’Loughnane so close to a total of £102,300 that it was clear that Mr French was just effecting some sort of a repayment of a loan or by way of gift. Mr Pryce and Mr O’Loughnane seek for me to affirm my August judgment. As to this, I have again applied the overriding objective to all the material and submissions before me, and in particular the following.[220]Firstly, here, finality is of considerable weight as I have already decided this point with all the material before me; the dating error is really of no consequence.[221]Secondly, in any event, even if Mr Hurst were right to say the amounts of money passing from Mr French were intended to equal all the combined amount of £102,300 and any loans to Mr French and Barbara French from Penny O’Loughnane, I do not find that the amounts which I held in the August Judgment had been provided by Mr French by way of loan (“the French Loan Amounts”) were actually repayments of debts or gifts.[222]Having considered all the evidence and where I give and have given weight to Mr French’s own evidence, and to the documents which show an intention for Mr French to provide the money (being the French Pre-charge Loans and the £25,000 provided to BWB in January 2010) to or for the benefit of Mr O’Loughnane by way of secured loan; I hold that, on the balance of probabilities, I am satisfied that the intention was that the £102,300, or rather the amounts which formed the French Loan Amounts (whatever the position regarding any other amount(s)), were paid by Mr French on the basis, as between Mr O’Loughnane and Mr French, that Mr French owned them and was lending them so that they were to stand as debts in law and to be secured by the French equitable charge, and that this was not a situation of a repayment by Mr French of existing obligations owed by him (to Mr O’Loughnane or, for that matter, Penny O’Loughnane) or of any gift by Mr French. I am further satisfied on the balance of probabilities, that the monies paid to Bates, Wells & Braithwaite were being lent by Mr French to Mr O’Loughnane.[223]That is what the various documents say. I find nothing unreal in this. Mr O’Loughnane told Mr French that the £102,300 was the product of the Dubai investment; whether that was correct or not, that was what Mr French thought. That is to say, the money was his.[224]Even if that is wrong and a gift had made by Mr O’Loughnane to Mr French, there is nothing wrong or surprising about a doting father-in-law lending back to their son-in-law who was, in some way, in trouble, in a way which was designed to protect the giver (Mr French) as best as they could be protected against the son-in-law’s creditors.[225]It seems to me that it is perfectly common in family transactions to have a gift with an enforceable loan back. There is nothing wrong in law as such and, at first sight, it may be very sensible in order to protect family assets. The transaction may not work, for one reason or another, in tax law or insolvency law, but that is not the position here.[226]However, in any event, I find that Mr French believed the £102,300 was his own money and that he believed and intended that the monies derived from the proceeds of 18 Oulton Court were his to deal with as he wished, including by his intended and actual loans, in return for security, to Mr O’Loughnane.[227]Thirdly, even if Mr French had felt that he had some moral obligation to provide money for Mr O’Loughnane’s legal fees, when Mr O’Loughnane had secured the £102,300 by purportedly including Mr French in the Dubai transaction at low cost, I do not see that that helps Mr Lindsay. Again, I simply find that Mr French intended there to be a secured loan to Mr O’Loughnane. That was what Mr O’Loughnane had asked for and what the documents clearly set out. That, in my judgment, was the agreement. It was not some sort of gift or simple repayment by Mr French.[228]It seems to me that, whether or not Mr French felt that he had a moral obligation to make a secured loan when Mr O’Loughnane had asked for that, is neither here nor there. It seems to me that falls in the same category as any intention held by Mr French before he died, albeit that he denies having had such an intention, to give any proceeds of this litigation to Mr O’Loughnane or Penny O’Loughnane. It is simply immaterial. In relation to all of those matters, Mr French was simply dealing with his own money; and he was entitled to deal with it as he pleased.[229]Having balanced those various matters all together, I can see no reason to reopen my judgment in relation to this aspect and where considerations of finality have real weight. If I had reopened it, it seems to me that I would simply reject Mr Hurst’s case for the reasons given in the August judgment and above. E Mr Lindsay’s contention that the equitable charges only related to monies to be advanced subsequently and not to monies already advanced[230]Mr Hurst further contends that I did not rule on one argument within the August judgment, being his contention that the French equitable charge and the Heaphy equitable charge only purport to and should only be construed to secure monies advanced after the execution of those documents and not monies advanced before. Mr Hurst submits that references to “the loan” and those documents, only relate to “the further funds to be loaned” – see clausae 2 pf the Loan Agreements and clauses one and two of the Equitable Charges. Mr Pryce says that Mr Hurst’s construction is wrong.[231]I have considered all the material and counsels’ submissions.[232]Firstly, it is correct that Mr Hurst pleaded this argument and referred to it in his opening skeleton. However, I had seen little reference to it in the closing submissions and, therefore, had assumed that it was not pursued. It is, though, an argument of pure construction and I feel that it is right to deal with it now, notwithstanding the finality principle.[233]Secondly, I have carried out a holistic constructional analysis as per paragraphs 152 onwards of the August judgment.[234]In my judgment, the French equitable charge and the Heaphy equitable charge apply to secure the amounts advanced before their execution as loans as well as those so advanced after their execution. In my view, a reasonable reader would so read the documents. In particular, for the following reasons.[235]First, looking at the charges alone, what was secured were “Chargor’s liabilities” which were defined as liabilities of any kind under the relevant loan agreement.[236]Looking at the loan agreements, clause one refers to the “principal amount” as including sums already advanced, which were set out. The expression “the loan” is defined as the principal amount. Clause four states that “the loan” is to be repaid at particular times and from the security of the properties. It seems to me that, when one looks at those words, the security is being granted in relation to the entire lending, including the sums already advanced.[237]While clause two refers to “the further funds to be advanced”; clause two is ostensibly only about the purpose for which such funds are to be used; it does not say that only those funds are to be the subject matter of the security granted by the loan agreement.[238]It further seems to me that it would contrary to the ordinary commercial purpose of a loan agreement and associated security, which refers to a total facility and to sums already advanced and which provides for security, for such security to be limited to further advances. One would not expect the security to only apply to future advances and not to the previous advances. It seems to me that, if that was the intent, one would normally expect some express words to state that. I do not feel that Mr Hurst’s construction makes commercial sense.[239]Further, the fact that the charges defined in clauses 1.1(d) the “loan agreement” as an agreement to advance monies, does not affect, in my view, the wording of the charges which I consider clearly says that it secures all of the chargor’s obligations under the loan agreement.[240]I, therefore, simply reject Mr Hurst’s contention as a matter of construction.

F Applications for Permission to Appeal

[241]Mr Hurst seeks permission to appeal against the August judgment and I think it must follow also, this judgment, and it seems to me to be convenient to take the matters all together.[242]CPR 52.6 provides that permission to appeal may be given only where(a) the Court considers that the appeal would have a real prospect of success or(b) there is some other compelling reason for the appeal to be heard.[243]Mr Hurst has produced a lengthy set of grounds of appeal.[244]Ground 1 is headed “Failure to Apply Correct Burden of Proof”; and asserts that, in one way or another, I placed a burden of proof on Mr Lindsay wrongly, and that I allowed the admission of an unpleaded case wrongly, and failed to hold that Mr French and Mr Heaphy had an obligation to call Mr Oakley to give evidence.[245]I am unsure as to how this is, if at all, distinct from the other grounds relating to, in effect, the worldwide freezing order and the December 2009 correspondence. The same point arises, in effect, with regards to grounds 2-4. If any of those grounds are distinct from my deciding the consent and, if necessary, estoppel points regarding the 23 December 2009 letter, and associated matters with regards to the effect of worldwide freezing order, I do not see them as having any real prospect of success or there being any compelling reason for an appeal to be heard.[246]However, as far as the worldwide freezing order and the December 2009 correspondence are concerned, I do see an appeal as having a real prospect of success. I bear in mind that the test for a real prospect of success is a low one; namely, that the argument must have chances of success which are more that fanciful. As I said in paragraph 300 of the August judgment, my mind had waivered as to what was the correct construction of 23 December 2009 letter and what was meant objectively by the word “legitimate”. I, therefore, think that there is a real prospect of success with regard to those aspects.[247]That is notwithstanding the conclusion I came to earlier in this judgment that Ms Rees actually subjectively intended, according to the December notes, the 23 December 2009 letter to mean by the word “legitimate” terms that were commercially reasonable. The question is one of construction, which is an objective one.[248]I have considered whether to grant permission limited to only the question of construction or whether I should grant it in relation to the 23 December 2009 letter and Mr Lindsay’s case based on the worldwide freezing order generally, so as to extend such matters as the estoppel and Patel v Mirza aspects of the case.[249]Albeit somewhat hesitantly, I consider the situation to be sufficiently unusual for it to be appropriate to grant the wider permission and so that it also extends to the pleading aspects; as, firstly, the situation is sufficiently unusual for it to be probable that Mr Hurst has a real prospect of success; but secondly, and in any event, to seek to divide these matters up is likely to be impractical and result in a waste of time, costs and resource as arguments are advanced based on seeking to draw dividing lines between what is permitted and what is not permitted to be advanced. That would be contrary to the overriding objective; and that, it seems to me, would render the matter such that there was a compelling reason for the entirety of the appeal on those various matters to be heard.[250]I bear in mind, also, in relation to this aspect that the question as to what is sufficient, effectively, to bring a request for some sort of consent and a response within the standard form exception to a worldwide freezing order or other personal freezing order is a matter which is of some general importance in an important area of the law.[251]Therefore, it seems to me that I should grant permission to appeal in relation to all of these particular aspects.[252]That includes, in particular, the pleading points; the question of construction of the 23 December 2009 points and the questions of consent and estoppel; the questions of whether there is a breach of the freezing order in those circumstances of which Mr Lindsay could take advantage; and if so, whether that should result in the French charge and the Heaphy charge not having priority over Mr Lindsay’s charging orders.[253]In the circumstances, it seems to me that the permission to appeal should be granted in favour of all the parties in order to avoid what would be the waste of time costs and resource which, it seems to me, would otherwise arise in relation to some application for permission having to be made in a respondent’s notice. I propose to grant permission for appeal on that basis; the parties will have to consider how it can best be drafted to cover such matters.[254]Ground 5 of the proposed grounds to appeal asserts that I misconstrued the French Charge and the Heaphy charge in relation to the principal debtor clause, and misapplied that clause in relation to questions of what was secured by the charges and whether Penny O’Loughnane being allowed to take the proceeds representing her beneficial interest in Beacon Hill did or, as I held, did not result in an implied release of the charges; that being effectively the subject-matter of paragraphs 150 to 206 of the August judgment.[255]I, however, see the construction and other points as being clear; and, in particular, clear that any reasonable reader or observer would interpret them to mean that what the charges were doing were securing the liabilities of Mr O’Loughnane over, at least primarily, Mr O’Loughnane’s interests in the properties, and that the release of Penny O’Loughnane was not intended to, and so did not, cause the charges to be released. I do not see any real prospect of success on an appeal here or any compelling reason for an appeal to be heard and I refuse permission in relation to that ground.[256]Ground 6 is in relation to my asserted failure to determine that the equitable charges were transactions at an undervalue for the purposes of Section 423 of the Insolvency Act, contrary to my findings and reasons set out in paragraph 240 of the August judgment. I consider that I have dealt with this matter holistically, applying the relevant authorities and their tests to all of the material and coming to the conclusion that there was no under-value. It seems to me that that was simply an evaluative exercise for the first instance Judge, being myself, to carry out and I do not see any real prospect of an appeal Judge saying that I went outside the reasonable bounds of an appropriate valuation and that I was wrong in my answer.[257]I, therefore, do not see a real prospect of success here or a compelling reason for an appeal to be heard. Therefore, I do not grant permission on ground six.[258]Ground 7 is an asserted failure by me to find that the transactions were shams where I rejected Mr Hurst’s case for Mr Lindsay at paragraphs 142 to 149 of the August judgment. Again, I consider that this was a determination of fact where I considered all the material and expressed valid reasons and I do not see any real prospect that an appeal Judge would say that I was wrong and outside my reasonable bounds. Therefore, it seems to me, there is no real prospect of success here and I do not see any compelling reason for an appeal to be heard and I, therefore, do not grant permission on that ground.[259]Ground 8 is that I failed to appreciate the personal responsibility of Mr French and Mr Heaphy for breaching the worldwide freezing order and, therefore, should have refused to enforce the equitable charges so as to prejudice Mr Lindsay. I am unclear as to how this ground is, if at all, additional to the previous grounds relating to the worldwide freezing order, and I further note that I held that if my construction of the 23 December 2009 letter was wrong and that Mr French and Mr Heaphy had breached the worldwide freezing order, as a result then, Mr Lindsay would, in fact, have succeeded (see paragraph 310 of the August judgment).[260]Therefore, insofar as this ground seeks to add anything to that which I have already given permission to appeal, it seems to me that it has no real prospect of success and I cannot see any compelling reason for an appeal to be heard and, therefore, if that ground has such a different meaning, I refuse permission to appeal.[261]Ground 9 is an assertion that I failed to hold that the loan agreements and charges only operated prospectively with regards to lending made after their date. I have rejected that construction earlier in this judgment, and where I see the situation as being clear, and I do not see any real prospect of success or compelling reason for an appeal to be heard and I refuse permission to appeal on that ground.[262]Ground 10 is that there was an asserted failure on my part to grant permission to amend to plead that what French was doing was to effect repayment of loans which had previously been made to him. I dealt with that assertion earlier in this judgment, holding that permission to amend is to be refused as I, in any event, have held that that was not the case. It seems to me that this ground is effectively an attack on my conclusions of fact. I consider those conclusions of fact to be clearly within the reasonable bounds of what a first instance Judge might decide.[263]Insofar as the ground is directed towards Mr Hurst’s arguments regarding the alleged use by Mr French of stolen monies, I dealt with that assertion earlier in this judgment. Even if Mr Hurst was able to establish the facts upon which he relies (subject to my having concluded as a matter of fact that Mr French was acting honestly and believed himself to have been paid monies from Global to which he was entitled), I consider that Mr Lindsay’s case is clearly wrong in law on his asserted facts for the reasons which I have set out above. It does not seem to me that there is any real prospect of success on appeal here and there is no compelling reason for an appeal to be heard and, therefore, I refuse permission on that ground.[264]Ground 11 asserts that I wrongly gave weight to Mr French’s evidence in all the circumstances, including, in particular, Penny O’Loughnane’s role in drafting the first few sets of witness statements. It seems to me that I did consider all of that in my judgments, and that my conclusions were a matter of evaluation and fact, and that there is no real prospect of their being held to be outside the reasonable bounds of what a first instance judgment might conclude. Therefore, again, it seems to me that there is no real prospect of success here and no compelling reason for an appeal to be heard, and I refuse permission on that ground.[265]I am, therefore, granting permission to appeal but only in relation to the worldwide freezing order/23 December 2009 letter, etc., aspects but including the pleading aspect, as I have set out earlier in this judgment.

G Consequential orders

[266]That, it seems, deals with that substantive applications and related matters. There does, however, then arise the question as to what consequential orders or consequential order provision I should make. Mr Pryce says that I should order the money in Court to be paid out now and seeks various costs orders including to claim that Mr Lindsay should repay the money which I ordered earlier in these applications to be paid out to him so that Mr French and Mr Heaphy can seek costs on the indemnity basis against that money under the terms of the equitable charges.[267]My initial view is that to deal with such complex issues at this point, where I have not yet heard full submissions and the argument may be lengthy, is in all the circumstances of this case, potentially contrary to the overriding objective, especially where Mr Hurst had indicated very strongly that he wishes to appeal the August Judgment and, effectively, the preceding sections of this judgment.[268]This is a case which has been very much delayed, including because Mr French and Mr Heaphy did not seek to enforce their charges from 2010 onwards until Mr Lindsay forced the situation upon them. In those circumstances, it seems to me that they can make little complaint of delay, and where money is still in Court bearing interest. My provisional view is that I do not feel it appropriate to potentially waste time and resource on substantial arguments as to this where it is said there is going to be an appeal, which may mean that any substantive orders which I might make now, and any steps taken consequent upon them would be wasted or, at least, the relevant parameters change.[269]My provisional view is that what I am going to do is that is I will declare that the French and Heaphy equitable charges secured the principal amounts with interest of all the lending, both that made before and that made after the execution of the charges, and are and were enforceable, including against the money presently in Court, and have priority over Mr Lindsay’s charging orders. I will reserve all other questions and orders and consequences, including as to costs, with a general permission to apply. I will do that, as long as Mr Lindsay’s side undertakes to file an appeal notice within a set period which remains to be determined and thereafter, diligently prosecute such an appeal. That, it seems to me, would enable an appeal to be got out of the way, would avoid a need to list substantial further hearings at this point which might well require further evidence to be adduced, and would avoid potential risks that, if monies were paid out now and an appeal was successful, they would not be subsequently recovered.[270]That is not intended to necessarily stop Mr French and Mr Heaphy applying for substantive orders; but even if such an application was made, it would necessarily have to be listed sometime ahead from now owing to the state of my diary; and I do point out to them that, even if I was then to make some order in their favour, Mr Lindsay would be able to apply for some set of stays to an appeal Judge in circumstances where I have granted a particular permission to appeal.[271]Since I have not heard full argument and particularly since I had not, when hearing argument previously, come to the conclusions contained in and delivered in the earlier parts of this judgment, those statements from me, at the moment, are simply provisional but counsel will have heard what I have said. THE SCHEDULE OF STATEMENTS OF CASE etc. Paragraphs 23-29 of the Claimant’s Points of Claim “Refusal of Requests for Consent to dispositions outwith the Angel Bell provision 23. In the course of 2009, BWB made repeated requests for consent to dispositions with the aroma of falsity not believed to be bona fide or within the exceptions to the freezing injunction. In respect of each Mishcon responded in terms that the dispositions were not permitted and were in breach of the freezing injunction unless within the Angel Bell provision or otherwise clearly permitted. In the premises, Mishcon gave clear notice that no disposition was permitted outwith the permitted exceptions absent the consent of Mr Lindsay. 24. In response to each request and repeatedly throughout 2009/2010, Mishcon requested/insisted upon the provision of documents and information evidencing the bona fides of the proposed disposition. In each case BWB refused to provide(i) particulars of the disposition;(ii) any document in support evidencing the bona fides of the disposition;(iii) particulars of the terms of the proposed disposition;(iv) any other fact or matter reasonable to provide to demonstrate the bona fides of the transaction. 25. The chronology of events to be relied upon at trial is as follows: (1) On 1 May 2009 BWB requested consent to Mr O’Loughnane borrowing funds from third parties to fund his legal expenses with such loans being secured against the equity in Beacon Hill; (2) On 4 June 2009 BWB notified Mishcon de Reya of receipt of a loan from Andy Heaphy of £9,999 to be used towards his legal expenses. The sum was said to have been transferred from Mr Heaphy to BWB’s client account and secured by a charge against the equity in Beacon Hill. Paragraph 4.1 ended “For the avoidance of doubt, the sums loaned to Mr O’Loughnane by his father-in-law, Mr Jim French (and any other third parties) will be secured in the same way”. Mr Lindsay will rely upon these representations as expressly stating that the legal costs were to be paid by and upon the sale of Beacon Hill; (3) On 9 June 2009 Mishcon de Reya requested particulars of the terms of the proposed loan agreements, the terms of the security and the provision of copies of all proposed documents to enable Mishcon to consider them with a view to consent to dispositions in respect of Andy Heaphy (Paragraph 10) and Mr French (Paragraph 11). No particulars were provided by BWB at any time; (4) On 23 June 2009 BWB notified Mishcon de Reya that Mrs O’Loughnane was making mortgage payments to Birmingham Midshires Building Society. Paragraph 5.2 gave notice of Mr O’Loughnane’s intention to take a further loan of £25,000 from Richard Leahy to be secured by an equitable charge over Mr O’Loughnane’s interest in Beacon Hill. It will be said that this was a fraudulent intention/objective subsequently repeated in respect of the alleged loans from Mr French and Mr Heaphy. (5) By Paragraph 5.3, BWB refused to disclose details of the terms of the loans or to provide copies of associated documentation. It is to be inferred that the concealment of the loan terms and documentation was intended to disguise the falsity of the purported loan arrangements and to preclude or frustrate an application to the Court for breach of the Freezing Injunction; (6) By letter of 26 June 2009 Mishcon de Reya requested particulars of whether any third parties had paid any debts or liabilities (whether solely or jointly owned by Mr O’Loughnane) and, if so, requested full particulars of the third parties and the debts/liabilities they have paid. BWB declined to provide any particulars; (7) On 13 August 2009 Mishcon de Reya requested particulars from BWB as to the proposed charges, the party in whose favour the charges would be executed and the terms of the security, and requested provision of copies of the relevant documents. Mishcon also requested confirmation as to whether fees had been incurred or were yet to be incurred together with the actual or projected period they were intended to recover. BWB were notified of the obligation to provide further details in good time before any assets were secured. BWB refused to confirm any fact or matter or provide any information. (8) By letter 14 August 2009 BWB refused to provide any documents or information save to hold out that the charge would be registered in the name of Bates Wells & Braithwaite in respect of present and future legal fees; (9) On 28 August 2009 Mishcon de Reya requested particulars of loans by Third Parties said to have been provided to Unicaga in Spain. This request was refused by BWB. (10) On 22 September 2009 BWB notified Mishcon de Reya of Mr O’Loughnane’s intention to provide security for monies advanced or to be advanced by way of loans in respect of litigation expenses from J French and A Heaphy. It was implied from the preceding facts that the security would be over Beacon Hill; (11) On 24 September 2009 Mishcon de Reya demanded particulars of alleged loans from Mr French/Heaphy of £25,000 and £9,999 having regard to a costs estimate of £207,198.95. Mishcon requested particulars as to whether additional proposed loans from French and Heaphy were in respect of legal costs incurred or to be incurred, and requested that BWB provide prior particulars of the exact sums to be advanced and the precise property on which it would be secured prior to any such advance. BWB refused to provide any documents or particulars; (12) On 1 October 2009 BWB notified Mishcon de Reya of Mr O’Loughnane’s proposal to pay his US rent by way of loans from friends and family to be secured against his assets at a monthly amount of $4,000 pm; (13) On 6th October 2009 Mishcon de Reya demanded particulars of any further proposed loans from friends and family to be secured against assets in relation to US rent; requested an explanation as to the necessity of such loans; and requested particulars of Mr O’Loughnane’s employment situation and particulars of income and quantum together with particulars of the source of monies. Mishcon warned BWB of the need to obtain consent to the loans and charges proposed following the provision of information. BWB refused to provide any information; (14) On 17 November 2009 BWB notified Mishcon de Reya of Mr O’Loughnane’s intention to provide security in respect of his legal costs by a charge in respect of Beacon Hill up to £135,000. By this representation BWB again held out that the firms legal costs would be discharged upon the sale of Beacon Hill; (15) By letter 27 November 2009 BWB declined to provide particulars of Mr O’Loughnane’s sources of income. The letter listed a series of purported loans from third parties, of which loans 4, 5, 7 and 8 were provided to assist legal expenses. The letter referred to Mr O’Loughnane’s intention to provide security against his beneficial interest in his assets including Beacon Hill, White Horse Hill, Worsley Grange and Unit 4 Victoria Works; (16) On 11 December 2009 Mishcon de Reya again requested particulars of the purported loans together with documentation and terms. The letter notified BWB that Mr O’Loughnane was not entitled to deal with loan monies except in the ordinary course of business or on fulfilment of the terms of Paragraph 11(1) of the Freezing Injunction to disclose the source of the monies. The letter further warned BWB of the Freezing Order prohibition on the provision of security for loans absent Mr Lindsay’s consent; similarly, that Mr O’Loughnane cannot repay loans from third parties without Mr Lindsay’s consent; (17) On 16 December 2009 BWB gave notice of Mr O’Loughnane’s intention to provide “security in respect of funds advanced and to be advanced” by French and Heaphy up to £125,000 and £75,000 respectively secured against Mr O’Loughnane’s property interests; (18) On 18 December 2009 Mishcon de Reya demanded particulars of the further monies to be advanced by Mr French including (i) the purpose of such loans or the past use of such loans (ii) particulars of living and relocation expenses claimed to justify further lending. Particulars were requested of the purpose of the further £60,000 purported to be loaned by Heaphy and for details of use and quantum. The letter again warned of the Freezing Injunction’s prohibition on the provision of security without Mr Lindsay’s consent and requiring particulars prior to the grant of such consent; (19) On 22 December 2009 BWB purported to claim that Mr O’Loughnane was entitled to take out loans on commercial terms secured by appropriate security. This contention will be denied at trial. The letter also contended that loans to Mr O’Loughnane in 2008 from French were before the Freezing Injunction. BWB implied that they intended to provide particulars of further funds received and their application. No such particulars were provided at any time. (20) The said letter referred to past security provided in respect of Beacon Hill. It is said that this was further representation that the legal costs of trial would be discharged from the proceeds of sale of Beacon Hill; (21) On 23 December 2009 Mishcon de Reya acknowledged Mr O’Loughnane’s right to pay disbursements falling within the exceptions to the Freezing Injunction and the Angel Bell provision for disposal of assets in the ordinary and proper course of business. Mishcon’s letter warned BWB that they were seeking consent to transactions absent adequate verification that the transactions were legitimate and in the ordinary course of business, and in the face of refusal to provide basic information about the transaction and the relationship with the lending individuals despite repeated requests to be provided with that information; (22) The letter warned BWB of the impossibility of verification that the proposed transactions fell within the excluding provisions of the Freezing Injunction and warned BWB of Mr Lindsay’s inability to consent absent full provision of information. BWB were warned of the consequences of disposals falling outwith the Freezing Injunction exceptions; (23) On 12 January 2010 BWB notified Mishcon de Reya of the provision of further funds by Heaphy and French in respect of Counsel’s fees in the sum of £10,000 and £25,000 respectively. No particulars of any security provisions were provided; (24) On 28 January 2010 Mishcon de Reya reaffirmed their position as stated in the above letter dated 23 December 2009 (that no consent could be given) and requested further particulars of the loans referred to; also requesting confirmation that the sums of £10,000 and £25,000 were the sole funds advanced since 27 November 2009. BWB declined to provide any particulars. 26. On 18 February 2010 BWB affirmed Mr O’Loughnane’s expenditure of £23,208.04 for a ring for Mrs O’Loughnane on 17 March 2008 and a payment of £29,000 to a personal Amex debt on 16 May 2008. This expenditure followed (i) clear and express notice from Manager John Barnett on or about 15th January 2008 that FXS Ltd was insolvent and could not satisfy its currency exchange obligations to its customers; and (ii) acknowledgement by e mail from Penny O’Loughnane to Mr Barnett that the directors owed money to the company and money to the client accounts (iii) Knowledge that the money used came from client money from the client account. Breach of the Freezing Injunction 27. Notwithstanding the above warnings: (1) Mr O’Loughnane unilaterally created documents purporting to be charges in favour of Mr French; Heaphy and Drayton and registered them as above; (2) Mr French; Drayton and Heaphy did not register any charge or create any document, or instruct solicitors to create any documents, or enter into negotiations with Mr O’Loughnane or set terms in writing; or otherwise conduct themselves in a manner consistent with bona fide conduct on their part. (3) Mr French and Mr Heaphy left everything to Mr O’Loughnane and permitted him to make arrangements in his own interest. 28. By reason of the facts and matters particularised above, the charges placed upon the designated properties were outwith the Angel Bell provision; were not payments for reasonable and proper legal expenses, nor disposals made in the ordinary course of business. In the premises, the charges placed upon the designated properties were in breach of the Freezing Injunction. 29. Further, it is to be inferred by their refusal to provide supporting information, particulars and documents or (in particular) signed documents that the purported arrangements between Mr O’Loughnane and Mr French, Mr Drayton and Mr Heaphy were a sham or alternatively would not stand scrutiny by the Court in any application for consent prior to the registration of their equitable charges. A bona fide party would have willingly provided full particulars and copies of all documents in advance and/or would have sought the consent of the Court.” Paragraphs 74-105 of Mr O’Loughane’s points of defence “74. Paragraphs 23 does not relate to the First Respondent and can make no comment suffice to say that the Applicant seeks to claim that a reputable firm of solicitors in the City of London, BWB have acted in a dishonest manner.[75]Paragraph 24 does not relate to the First Respondent and cannot comment. Again BWB are a reputable firm of solicitors and the Applicant merely seeks to cast dispersions (sic) upon them.[76]Paragraph 25(1) is admitted. The First Respondent has had sight of the letter dated 1 May 2009 from BWB to MdR found in trial bundle E1 pages 243-407. Although subsequent correspondence from BWB to MdR found in the trial bundles informed them that equitable charges would be granted against the First Respondent’s property assets in addition to Beacon Hill.[77]Paragraph 25(2) is admitted. The First Respondent has sight of the letter dated 4 June 2009 contained in trial bundle E1 pages 243-407. The monies the Second Respondent sent to BWB confirmed in their letter in the sum of £9,999.00 were used when received. The reliance on the words “to be used” is denied. The letter dated 4 June 2009 was superseded by BWB’s subsequent letter to MdR dated 6 August 2009, this letter being contained in trial bundle E2 pages 440-820. In this letter MdR were put on notice that the First Respondent intended to dispose of “his interest in Beacon Hill” in the sum of £60,000.00 as security for BWB’s costs. In this same letter they were informed that it was the First Respondent’s intention to secure funding from third parties secured against his beneficial interest in one or more of the properties he owned.[78]Paragraph 25(3) is denied. The First Respondent has had sight of the letter of 9 June 2009 in trial bundle E1 pages 243-407. MdR requested particulars of the terms of the proposed loan agreements, the terms of the security and the provision of copies of all proposed documents. BWB responded to this letter on 23 June 2009 (again seen in in trial bundle E1 pages 243-407) and at paragraph 5.3 of this letter it clearly states “We are not aware of any authority which would require Mr O’Loughnane to disclose details of the terms on which these loans are made, or copies of associated documents. If you believe that such authority exists, please let us know”. This response is admitted by the Applicant at paragraph 25(5) of his Statement of Case.[79]Paragraph 25(4) is denied. The letter dated 23 June 2009 from BWB to MdR seen in trial bundle E1 pages 243-407 states that Penny O’Loughnane had made one mortgage payment (not multiple as the Applicant alludes to) to Birmingham Midshires Building Society in respect of Beacon Hill, Farley Common, Westerham, Kent, TN16 1HY in the sum of £741.83 in an effort to forestall repossession proceedings that had arisen as a result of the Applicant’s delay in granting permission to make mortgage payments (along with the other property mortgage payments). Once the Applicant had finally granted permission for mortgage payments in respect of Beacon Hill, Farley Common, Westerham, Kent, TN16 1HY to be made it was confirmed they would come out of the Abbey National joint account number 19469412 and Penny O’Loughnane would not need to make any further payments to Birmingham Midshires Building Society from her own account. A loan from Richard Leahy was considered over the First Respondent’s interest in Beacon Hill in order to be able to continue to pay for his legal representation. However the terms of such a loan were not favorable to the First Respondent and the loan was not pursued.[80]Paragraph 25(5) is denied. The First Respondent relies on the response of BWB referenced at paragraph 78 above.[81]Paragraph 25(6) is admitted save that having the First Respondent now seeing the letter dated 26 June 2009 contained in the trial bundle E1 pages 243-407 it is denied that BWB would not have responded.[82]Paragraph 25(7) is admitted insofar as MdR wrote a letter to BWB dated 13 August 2009 in response to BWB’s letter dated 6 August 2009 referenced at paragraph 77 above. BWB did in fact to respond to this letter on 14 August 2009. All letters referred to in this paragraph has been seen by the First Respondent in trial bundle E2 pages 440-820.[83]Paragraph 25(8) is denied. BWB responded to MdR’s letter dated 13 August 2009 on 14 August 2009 and responded as far as they were legally obliged to. Again these letters can be found in the trial bundles provided by the Applicant.[84]Paragraph 25(9) is admitted insofar as MdR did write to BWB on 28 August 2009 regarding loans provided by third parties in relation to payments to Unicaja in Spain having had sight of this letter contained in trial bundle E2 pages 440-820. It is denied that BWB would not have responded. It is possible that they may have taken the stance that the Applicant was not entitled to the information sought.[85]Paragraph 25(10) is denied. BWB’s letter dated 22 September 2009 to MdR does not imply that the security to be granted to the Second and Fourth Respondent would be placed over Beacon Hill – such a letter being contained in trial bundle E2 pages 440-820. The letter reiterates what was written in BWB’s letter dated 6 August 2009 to MdR and clearly states that loans provided by the Second and Fourth Respondent to the First Respondent in respect of his litigation expenses would be secured against “Mr O’Loughnane’s interests in one or more of the properties of which your client [the Applicant] is aware”. There was no mention of these loans being secured against Penny O’Loughnane’s interest in Beacon Hill.[86]Paragraph 25(11) is admitted insofar as MdR wrote to BWB on 24 September 2009 requesting information of the loans from the Second and Fourth Respondent in the sums of £25,000.00 and £9999.00 respectively contained in trial bundle E2 pages 440-820. It is denied that BWB would not have responded. It is possible that they may have taken the stance that the Applicant was not entitled to this information.[87]Paragraph 25(12) is admitted. BWB wrote to MdR on 1 October 2009. This letter can be found in trial bundle E2 pages 440-820. The First Respondent was proposing to pay his US rent from loans from family and friends. The Second and Fourth Respondent are seeking the repayment of the legal expenses of the First Respondent that were paid directly to BWB as has been evidenced and therefore any such loans are not relevant to this matter.[88]Paragraph 25(13) is admitted insofar as MdR wrote to BWB on 6 October 2009. This letter was found by the First Respondent in trial bundle E2 pages 440-820. The First Respondent can make no comment as to whether BWB responded to this letter or if they took the stance that the Applicant was not entitled to such information.[89]Paragraph 25(14) is admitted insofar as BWB wrote to MdR on 17 November 2009. This letter was found by the First Respondent in trial bundle E2 pages 440-820. It is denied that BWB’s letter held out that the firm’s legal costs would be discharged upon the sale of Beacon Hill. What this letter did confirm was that their security against Beacon Hill needed to be increased to £135,000 and went onto say that the First Respondent was still in the process of arranging for appropriate security to third parties who had loaned funds to him and that such security is likely to be in the form of charges over the Applicant’s beneficial interest in “one or more of the properties in which he has an interest”. It made no mention of Penny O’Loughnane’s interest in Beacon Hill.[90]Paragraph 25(15) is admitted insofar as BWB wrote a letter to MdR dated 27 November 2009. This letter was found by the First Respondent in trial bundle E2 pages 440-820 and confirmed that the Applicant was not entitled to the details of the First Respondent’s sources of income yet despite this the Applicant was provided with the details of the First Respondent’s income in this letter. In this same letter BWB reiterate that their charge over Beacon Hill in respect of security for costs is against the First Respondent’s beneficial interest in Beacon Hill only.[91]Paragraph 25(16) is admitted. Having had sight of the letter dated 11 December 2009 from MdR to BWB contained in trial bundle E2 pages 440-820 in this letter MdR acknowledge that it is the First Respondent’s intention to provide security against the First Respondent’s beneficial interests in Beacon Hill, White Horse Hill, Worsley Grange and Victoria Works. MdR claimed that the First Respondent was not was not (sic) entitled to provide any security without the Applicant’s consent and requested details of the loans together with the documentation and terms. BWB responded to MdR’s letter of 11 December 2009 on 16 December 2009 contained in trial bundle E2 pages 440-820. This letter confirms that the First Respondent does not require the Applicant’s consent with regards to loans subject to a charge and secured against the First Respondent’s beneficial interests in the properties. This letter also gives notice to MdR that under the terms of the Freezing Order the Applicant is required to co-operate in ensuring there are no delays or difficulties in respect of third parties (being the Second, Third and Fourth Respondent) in registering their interests at the Land Registry.[92]Paragraph 25(17) is admitted.[93]Paragraph 25(18) is admitted save that BWB had previously advised MdR that the Applicant’s consent to grant equitable charges to secure the loans provided by the Second and Fourth Respondent to the First Respondent was not required.[94]Paragraph 25(19) is admitted insofar as BWB wrote a letter to MdR dated 22 December 2009 the remainder of this paragraph is denied. BWB’s letter of 22 December 2009 found by the First Respondent in trial bundle E2 pages 440-820 states that the Freezing Order dated 19 February 2009 does not prohibit the First Respondent from spending money on living expenses and a reasonable sun on legal advice and representation. This letter goes onto to confirm that the Order requires the First Respondent to inform the applicant where the money has come from and that the First Respondent has complied with the terms of the Order. In a letter dated 23 December 2009 from MdR to BWB contained in trial bundle E2 pages 440-820 MdR actually concede this point stating “We accept that the Freezing Order does not prohibit your client from spending money on living expenses up to the agreed weekly limit and a reasonable sum on legal advice and representation. We further accept that, once notice has been given as to where those monies are to come from, our client’s consent is not necessary for legitimate transactions.” “We further accept that the Order does not prohibit your client [the First Respondent] from dealing with or disposing of any of his assets in the ordinary and proper course of business”.[95]Paragraph 25(20) is denied. BWB’s letter to MdR dated 22 December 2009 referenced at paragraph 94 above makes no such representation that legal costs of the trial would be discharge from the proceeds of sale from Beacon Hill. At all material times the Applicant was made fully aware in correspondence from BWB that all equitable charges would be granted over the First Respondent’s beneficial interest in the properties.[96]Paragraph 25(21) is admitted insofar as MdR wrote to BWB on 23 December 2009. The remainder of this paragraph is denied. The First Respondent refers to paragraph 94 above to evidence MdR’s admission that the First Respondent had a right to dispose of his assets in the ordinary and proper course of business. Loans from the Second and Fourth Respondent for the First Respondent’s legal fees fell within this category.[97]Paragraph 25(22) is admitted insofar as the letter from MdR to BWB dated 23 December 2009 was written. The alleged warning referred to by the Applicant from MdR to BWB about verification of proposed transactions is irrelevant and has no bearing to this matter as the Applicant has been made fully aware of the amount of monies the Second and Fourth Respondent are seeking repayment of and where those monies were paid to and that it was in respect of the First Respondent’s legal fees.[98]Paragraph 25(23) is admitted. No particulars of security provisions were provided in BWB’s letter to MdR dated 12 January 2010 in respect of the amounts of £10,000 from the Fourth Respondent and £25,000 loaned by the Second Respondent in respect of Counsel’s fees. BWB’s legal opinion was that the Applicant was not entitled to this information as they had previously advised.[99]Paragraph 25(24) is admitted insofar as MdR wrote to a letter dated 28 January 2010 to BWB contained in trial bundle E2 pages 440-820. It is further admitted that MdR requested confirmation that the funds referenced in paragraph 98 above form part of the figures referred to in BWB’s letter dated 16 December 2009 with regards to equitable charges in favor of the Second and Fourth Respondents (those figures being £125,000.00 and £75,000.00 respectively). It is denied that the First Respondent required the Applicant’s consent as MdR had already conceded that the Applicant’s consent was not required in their letter dated 23 December 2009. It is unclear why the Applicant claims in this paragraph that no consent could be given. The First Respondent can only assume that if BWB declined to provide particulars of the sums advanced to them by the Second and Fourth Respondents in relation to the First Respondent’s fees was on the basis that the Applicant was not legally entitled to this information.[100]Paragraph 26 is denied. BWB’s letter to MdR dated 18 February 2010 contained in trial bundle E2 pages 440-820 does not affirm a £23,208.04 ring for Penny O’Loughnane. The First Respondent is able to confirm he has never purchased a ring in that amount for Penny O’Loughnane or any other individual. In respect of “the ring”, in their letter of 18 February 2010 BWB referred to paragraph 17 of Mr Barnett’s Witness Statement provided to the Applicant in the matter of Lindsay v. O’Loughnane 2010 EWCH 529 (QB). In this paragraph Mr Barnett claims that he saw the First Respondent’s American Express Bill and saw a transaction for “a ring:. The American Express Bill in question has no such transaction reference to “a ring”. In his Witness Statement Mr Barnett also claims that this American Express Bill was paid for by FXS. The purpose of BWB’s letter and its enclosures was to disprove the allegation of Mr Barnett as the First Respondent personally paid for his American Express Bill from his First Direct Account on 16 May 2008. The monies came to pay for the First Respondent’s American Express bill was from the re-financing of 9 Worsley Grange, Kemnal Road, Chislehurst, Kent, BR7 that resulted in circa. £48,000.00 in favour of the First Respondent. It is further denied that FXS was insolvent on or about 15 January 2008. Mr Barnett made no reference to this. In respect of Penny O’Loughnane’s communication with Mr Barnett the First Respondent can make no comment and she is not party to this action. The documents mentioned in this paragraph are contained within the trial bundles from 2010 provided by the Applicant.[101]Paragraph 27(1) is denied. BWB drafted the equitable charges and loan agreements and subsequently registered them with the Land Registry.[102]Paragraph 27(2) is denied. The First Respondent relies on the response provided at paragraph 101 above and the email dated 16 December 2009 from BWB that clearly evidences they drafted the equitable charges and loan agreements. BWB also arranged for a solicitor in their property department to register the equitable charges in favour of the Second, Third and Fourth Respondent at the Land Registry.[103]Paragraph 27(3) is denied. The First Respondent understands and believes that both the Second and Fourth Respondent were satisfied with the terms of the equitable charges and loan agreements drafted by BWB and they were signed and executed in terms that were favorable to them.[104]Paragraph 28 is denied. The payments the Second and Fourth Respondent are seeking to be repaid under their equitable charge registered against the First Respondent’s beneficial interests were paid directly to BWB and were payments for reasonable and proper legal expenses. The Applicant has never contested the equitable charge that BWB secured against the First Respondent’s beneficial interest in Beacon Hill. Both the Second and Fourth Respondent’s equitable charge were written in almost identical language to that of BWB. The Applicant also did not contest the Second Respondent receiving the sum of £2311.80 from the First Respondent’s share of the sale of Beacon Hill in December 2010. This is clear acknowledgment by the Applicant that the equitable charges are bona fide.[105]Paragraph 29 is denied. The equitable charges are not a sham and even presented with the evidence of this fact the Applicant refuses to accept this fact.”

Mr French and Mr Heaphy’s points of defence

[44]As to paragraph 26, what is averred there concerning the First Respondent are matters which may or may not be disputed as between the Applicant and the First Respondent. Respondent on his own behalf having liaised with BWB. Copies of the loan agreements entered into by the Respondents and the Charge Deeds entered into by the Respodnents and the Charge Deeds executed in their favour by the First Respondent and his wife are annexed to these the Points of Defence. The property schedule to the Second Respondent’s written loan agreement was inadvertently omitted when the Points of Defence were originally filed and served. The Second Respondent subsequently filed and served the property schedule.[47]As to paragraph 28 the Respondents deny that the charges granted by the First Respondent to each of them did not constitute appropriate security for the sums lent to the First Respondent by each of the Respondents, particularly for the payment of legal expenses, pursuant to the loan agreements they had made with the First Respondent. The Claimant’s points of reply to the points of defence of Mr French and Mr Heaphy “5. It will be said at trial that Mr O’Loughnane was not impecunious and required to borrow from Mr French and Mr Heaphy. He was beneficial owner of one property in Florida and possibly two properties in the USA (with Connecticut), with stated equity in the USA he submitted as being capable of supporting security for loans of $1,125,000 or thereabouts. In the premises, Mr O’Loughnane was readily capable of funding his litigation with BWB from his own resources.[6]In respect of paragraph 67; on 23rd December 2009 Mishcon de Reya (“Mishcon”) wrote to Bates Wells and Braithwaite Solicitors (“BWB”) in clear terms as follows: (1). The letter of 23rd December 2009 responded to a request letter from BWB dated 22nd December 2009; (2). In their response Mishcon informed BWB that they declined to approve the placement of a charge over various properties in favour of Mr French; Mr Heaphy and Paul Drayton; (3). Mishcon refused because approval would wrongly acknowledge that such a charge fell within the ordinary course of business exception to the freezing injunction; (4). Mishcon stated that BWB had declined to provide information which would verify the legitimacy of such charges despite repeated requests to do so; (5). Mishcon listed (in addition to references in prior correspondence) the refusals by BWB to provide any or any meaningful information or documents about the transactions alleged to permit the placement of charges in the ordinary course of business; (6). In particular, Mishcon noted BWB’s refusal to provide any documentation in respect of the alleged loans; (7). Mishcon cautioned BWB that unless the placement of charges fell within the ordinary course of business exception, the charges were not permissible; (8). Mishcon confirmed that legitimate dispositions within the ordinary course of business did not require consent and were permissible; with the caveat; (9). Mishcon stated that Mr Lindsay was unable to satisfy himself whether the proposed transaction was legitimate or not, and therefore assurances would not be given; (10). Mishcon warned BWB that if Mr O’Loughnane effected a transaction which was a disposal of assets out-with the exemption within the freezing injunction, Mr Lindsay reserved all rights.[7]The letter dated 23rd December 2008 was not consent to the charge as alleged by Mr O’Loughnane; Mr French and Mr Heaphy. To the contrary, it was a clear outright refusal to consent with amplified reasons and a warning of consequences of breach. Mr Lindsay will rely on paragraph 91 of the Amended Defence in which Mr O’Loughnane avers that Mishcon claimed to BWB that he was not permitted to place any charge over the properties without the consent of Mr Lindsay.

The applicable law

[8]The placing of the charges over the disputed properties in this claim did not fall within the provision permitting disposals in the ordinary course of business and in the premises amounted to a breach of the freezing injunction. Mr Lindsay will rely on admissions in correspondence and witness statements of the Defendants that Mr French and Mr Heaphy had knowledge of the freezing injunction prior to making the alleged loans, prior to signing the alleged loan agreements and prior to date of the alleged charge.[9]It will be said at trial that Mr O’Loughnane, Mr French and Mr Heaphy and the firm of Clarke Kiernan Solicitors have misconstrued the law and meaning of the exemptions contained in the freezing injunction of 19th February 2009 otherwise expressly prohibiting the placing of charges on the specified properties (with the exception of the charge in favour of BWB over Beacon Hill). In particular the Defendants have misconstrued the exemption in the order permitting the making of payments for legal expenses by wrongly assuming that this provision expressly or impliedly permitted the disposal of property as security. The court will be referred to authority and established text books at trial stating the converse in support of the proposition that the placement of charges did not fall within the ordinary course of any business carried on by Jared O’Loughnane. Mr O’Loughnane faced a personal claim in deceit at trial. The charges were made to secure alleged personal borrowing not business borrowing. Validation of the disposition of his properties by charge was by application to the Court. Implied estoppel claims are not valid in fact or law, in particular as Mishcon warned against charging the properties.” Mr French and Mr Heaphy’s points of rejoinder 319. decision is expressed in the said letter either.[7]As to paragraphs 8 and9 of the Applicant’s Reply, the Applicant has repeated an inadequate and opaque assertion. The Applicant then deflects from his own obligation by asserting the Second and Fourth Respondents “have misconstrued the law”. Finally, the Applicant concludes by stating the “court will be referred to authority and established text books at trial”. The Second and Fourth Respondents aver that the Applicant has failed to make in any meaningful sense any summary or citation of the relevant law.” (after further argument) MASTER DAGNALL: 1. I am asked by each side to make various different orders arising from both my August judgment and the judgment which I have delivered today. In relation to making any orders, I have, of course, considered the overriding objective in CPR 1.1 generally, although also the specific elements of the rules relating to the making of particular types of order. 2. One question, which I can deal with shortly, is the period of time for the filing of an appeal notice. The rules provide 21 days, unless the Court otherwise orders. Mr Hurst seeks 28 days from today. Mr Pryce says 21; Mr O’Loughnane being somewhat neutral but complaining about the overall length of the proceedings. 3. It seems to me that where I have delivered a substantial judgment today and, moreover, delivered that judgment orally, rather than in writing, that a further time for consideration than just the simply the ordinary 21 days should be granted, notwithstanding that appeal grounds already exist in a considerable form. It does also seem to me that there is some force in Mr Hurst’s contentions that further thought will be needed to be given to permission to appeal, and also, that in the light of the defendants’ position, that further thought would also need to be given as to whether an application would be made for stay of the judgments which would, of course, have to be supported by evidence. 4. For all those reasons, I am going to give the 28 days. 5. Mr Hurst also seeks to have the second and fourth respondents, the French and Heaphy sides, produce two types of document. 6. One is a schedule of their overall costs although I am unclear as to what form that would take, and Mr Pryce contends that even if something was to be produced, it would not need to be a form which would be created for a detailed assessment or potentially even for a summary assessment. A detailed assessment requires, effectively, a full bill; and a summary assessment, requires a completion of the relevant form but where Mr Pryce submits that the lengths of the various hearings were such that the matter is simply not suited to such a form in any event. 7. I am of the view that I should not make such an order directly. Although the Court does have general case management powers, it does not seem to me that it is appropriate to make a direct order that the other side should simply have to produce some sort of statement or breakdown of their costs. I am prepared, because it seems to me to be sensible in order to get the matter on the record, so-to-speak, to include a recital to the effect that Mr Hurst or Mr Lindsay asked for the second and fourth defendants’ side to produce a schedule of costs but that is only a recital. It is not any order or direction of the Court that such should be produced. 8. The position is, in fact, something of a curious one. It seems to me that if the second and fourth respondents are asking for some costs order in their favour; and where such an order would be for monies to be paid out to them (and whether from monies in Court or from Mr Lindsay), such an application would have to be justified; and, almost inevitably, such an application would require some sort of supporting statement or schedule of costs; otherwise, as Mr Hurst submits, the Court would be simply left in a position of guessing whether or not any, let alone a particular substantial amount of, costs had been reasonably incurred. 9. It does not seem to me that, without some sort of statement supported by a statement of truth, the Court would just simply proceed on the basis of saying that costs must have been substantial and plucking figures out of the air accordingly. That is all the more so where, at a previous hearing in 2020, I provided for a level of monies (derived from the sales of the various properties) to remain in Court on the basis that I then expected that reasonable costs would be (but would only be) of a maximum amount which (with the second and fourth respondents’ potential entitlements to capital and interest) would total no more than that level of monies. That was, however, only a protective provision. It was in no way a determination of what would be reasonable and proportionate costs; and certainly not a determination that expenditure of costs amounting to such a level would be reasonable and proportionate. 10. It, therefore, seems to me that I should not be making an order of the sort that Mr Hurst asks me to make; but that if the French and Heaphy sides wish to pursue what is effectively a request for a substantive order that a substantive amount be paid out in relation to costs, they are effectively going to have to go down that route themselves. However, I am simply not going to make any order as such about it but the parties will have heard what I said. 11. Secondly, Mr Hurst asks for an order that the French and Heaphy sides, both in terms of them as individuals but also in terms of their solicitor, produce some sort of statement as to when and how they applied to banks for particular bank statements, being the bank statements were only produced piecemeal, and shortly before and at stages during the trial itself. 12. Mr Pryce says that there is no basis for my making such an order at this stage, although Mr Hurst says it would be relevant to a costs determination in due course. It seems to me, and I have considered this holistically with other matters to which I will come, that this is not a point in time where it would be appropriate for me to make such a specific direction. At the moment, how and whether this matter proceeds before me seems to me to be somewhat up in the air and to await subsequent events. In those circumstances, for me to make an order of the sort that Mr Hurst seeks so that he can use such a statement in the future, should it become appropriate, does not seem to me to be the proper basis to make such an order. 13. However, I do make clear that, if there is an active costs dispute before me, including because the French and Heaphy side wish me to determine costs, it is open to the Lindsay side to contend that, without other evidence being adduced, I should infer that the French and Heaphy sides did not make proper inquiries and requests of banks at appropriate times. The French and Heaphy sides may well be in difficulty on such matters unless they produce such statements as Mr Hurst has sought. 14. Therefore, again, I am going to deal with this aspect today by including a recital that Mr Hurst sought such statements but not making any order about it. 15. The next question before me is as to whether or not I should make any consequential orders today, including for payment out of monies from Court to the French and Heaphy sides. In my previous judgment, I expressed the provisional view that such matters should be adjourned with permission to apply should the French and Heaphy sides wish to seek such orders. 16. Mr Pryce submits that I should make a number of costs orders at this point. He submits that his side should be entitled to the costs incurred from the delivery of the August judgment to date on the basis that those costs are effectively being incurred in relation to Mr Lindsay’s attempts to have me change my previous judgment, which attempts have failed; and also, in relation to the extent to which those costs related to Mr Lindsay’s application to amend the particulars of claim to raise or further advance the points as regards to the £102,300, which various substantive points I have rejected and where, on that basis, I have held that the amendment should not take place. 17. I asked Mr Pryce as to what would be the point of making such an order at this particular point in time if it would not translate into some sort of actual monetary award. He said that he would particularly wish to use it to be able to justify part of his application in relation to the monies presently in Court; namely that the money, to the extent that it is over and above the capital and interest to which I have ordered that the French and Heaphy sides are entitled, should be paid out to French and Heaphy’s solicitors. 18. Mr Hurst submitted that the matter was more complicated. He submitted that the costs position was not clear since a certain amount of the costs would have been devoted to the question of Heaphy’s and French’s pleading of the worldwide freezing order points, and also to the permission to appeal aspects upon which Mr Lindsay has had some limited success, and where the question of granting permission to appeal in relation to the worldwide freezing order was very much bound up with the other more substantive points which the Lindsay side was advancing. 19. Mr Pryce further sought orders that the money in Court, at least as far as capital and interest is concerned, but also otherwise in relation to costs for the reasons which I have already cited, should be paid out to French and Heaphy’s solicitors at this point. He said that I had decided in the August judgment that they had that particular entitlement to be paid, and that I have, effectively, reaffirmed that today, and there is no reason why there should be any delay. He said that, that stance had been made clear before the December hearings; and that if the Lindsay side wished to say that there was any reason why there should be a stay, for example to raise questions as to whether, if money was paid out and an appeal was successful, the relevant respondents would have any assets to fund such a repayment, the Lindsay side would have to have adduced relevant evidence. He submitted that such evidence was simply lacking and should have been provided, if at all, before now. 20. Mr Hurst submitted that I should simply follow my first thoughts and leave the matter over with potential for permission to apply; but where, if there was such an application pursued by the French and Heaphy side, evidence in support of the stay would be advanced. Further, in any event, Mr Lindsay’s side would be applying to the appeal Judge for further permission to appeal, and if orders were made for payment out by me, there would be an urgent application to the appeal Judge for a stay. Mr Hurst submitted that where I had granted a significant permission to appeal, that very much would suggest that applications for a stay could be granted. 21. I have considered all these matters together, and in the light of the overriding objective, and it seems to me that I should remain with the view which I expressed in my judgment, although with one significant potential alteration. 22. What, it seems to me, I am effectively doing is acceding to a request from Mr Hurst’s side, which he did make to me during submissions, that I should adjourn these particular aspects. 23. Although an adjournment is potentially always contrary to elements of the overriding objective, in terms of increasing time and cost; it seems to me that, in principle, an adjournment is appropriate, simply for the reasons that the last two hearings, it seems to me, did not afford time to fully, or indeed even really partially, explore these consequential matters, and were very much on a basis of being primarily directed towards the various substantive arguments which I dealt with in my last judgment. 24. Even if the Hurst side have failed to advance evidence which they wish to rely on, and which they could have advanced both before the December hearing and now, in support of the stay; it seems to me that, where I have made, in my judgments, various, what can been seen to be, criticisms of the French and Heaphy sides in terms of the ways and late stages in which they have advanced arguments, it would be just to give Mr Lindsay’s side an opportunity to create and put in such evidence as they rely on, and for them to do so on an informed basis where they know both what my full conclusions are and what permission to appeal I have granted. 25. I am reinforced in that consideration by the absence of any costs schedules of any form from the French and Heaphy side. It seems to me that the Court will be in a much better position to consider these particular matters with the benefit of, at least, some such material. 26. As far as the question of making actual costs orders at this point in the form that Mr Pryce seeks is concerned, it seems to me that that would not advance matters much further. In any event, there is no costs schedule and, if I was being invited to make any specific financial order, it would be much more convenient to deal with everything (both principle and amount) at once. That is not to say that I do not see substantial force in Mr Pryce’s submissions that he should be entitled to some form of costs orders along the lines that he has submitted; but those submissions can simply be remade at a further hearing. 27. I do also point out that if I make a costs order, I can award interest on costs from a date prior to the making of the costs order; and that would effectively protect the French and Heaphy sides in relation to any delay. 28. In all the circumstances, it seems to me that it is much more in accordance with the overriding objective for consequential matters to be dealt with together on an informed basis; and where I have, at this hearing, dealt with the substantive matters, effectively, once and for all. 29. My previous thought was to simply grant an adjournment with permission to apply. I am still prepared to do that but in circumstances where the French and Heaphy side indicated that they wished to pursue this, what I am prepared to do is as follows; to give the French and Heaphy side a period of time to state what they are asking for; together with any evidence in support including any costs statement of some form or other; then the Lindsay side should have a period after time after that to provide a statement in response, which will include any informal application for a stay of my judgments and orders, and any evidence in support of that. Mr Pryce, if he wants a further period of time after that to produce a counter response can have it; and I will list a further hearing. 30. Taking that course will effectively result in any application for a stay coming before me for determination. Mr Hurst can also, if he wishes to do so, apply to the appeal Judge for a stay. Of course, if he does get a stay from the appeal Judge then, that might rather overtake things. End of Judgments. Approved6.5.2025 Transcript of recordings by Acolad UK Ltd 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com Acolad UK Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof