BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE]

England and Wales High Court (Chancery Division) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Garofalo v Crisp & Anor (Re Valorem Holdings Ltd) [2025] EWHC 966 (Ch) (16 April 2025)
URL: https://www.bailii.org/ew/cases/EWHC/Ch/2025/966.html
Cite as: [2025] EWHC 966 (Ch)

[New search] [Printable PDF version] [Help]


Neutral Citation Number: [2025] EWHC 966 (Ch)
Case No: CR-2023-005725

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANIES LIST (ChD)

IN THE MATTER OF VALOREM HOLDINGS LIMITED
AND IN THE MATTER OF THE COMPANIES ACT 2006

Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
16 April 2025

B e f o r e :

ANDREW DE MESTRE KC (SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
____________________

Between:
DAVID VICTOR GAROFALO
Applicant/
Petitioner
- and -

(1) DAVID ADRIAN CRISP
(2) YULIA CRISP
Respondents

____________________

Mr James Bailey KC and Miss Jessica Brooke (instructed by Olephant Solicitors) appeared for the Applicant/Petitioner
Mr Paul Nicholls KC (instructed by DAC Beachcroft) appeared for the First Respondent
The Second Respondent was not represented

Hearing dates: 7-8 April 2025

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Andrew de Mestre KC (sitting as a Deputy Judge of the High Court):

    I Introduction

  1. On 20 March 2025, the Petitioner in these proceedings, Mr David Garofalo ("Mr Garofalo"), issued an application against Mr David Crisp (the First Respondent to the Petition and the application before me) and Yulia Crisp (the Second Respondent to the application before me and the wife of the First Respondent, but not a party to the Petition proceedings) seeking wide-ranging injunctive relief and other orders for the provision of information and documentation ("the Application").
  2. After initial attempts to have the Application heard prior to its formal issue and on a without notice basis were not successful, the Petitioner gave notice of the Application shortly before a CCMC in the proceedings held on 21 March 2025. The Application was therefore heard on notice and on an expedited basis before me on 7 and 8 April 2025.
  3. As will become apparent from the description below, the Application was urgent both because it related to matters which were said by the Petitioner to justify both proprietary injunctive orders against the First and Second Respondents and a freezing order against the First Respondent, and because it sought wide-ranging provision of information and documentation at a time when the timetable to trial in June 2025 is extremely tight. This judgment is, as a result, somewhat more summary in nature than it might otherwise have been given the detailed nature of the written materials and oral submissions which I received and the length of the order I am asked to make (which runs to 27 operative paragraphs). I have nonetheless taken into account all of the materials I was asked to read and all of the submissions made to me in reaching the decisions below. Further, nothing I say below is intended to reach any final conclusion on matters of fact at this interlocutory stage when such matters will be considered by the judge at trial.
  4. The Petitioner was represented by Mr James Bailey KC and Miss Jessica Brooke who have acted for him throughout the proceedings. The First Respondent was represented by Mr Paul Nicholls KC who had previously represented him but was instructed only shortly before the hearing by the First Respondent's new solicitors (DAC Beachcroft), the firm previously instructed (Osborne Clarke) having come off the record on or about 17 March 2025. The Second Respondent was not represented before me. I am grateful to the parties for their focussed and helpful submissions.
  5. II Background

  6. The background to the Application is relatively lengthy and the summary below is intended only to highlight the particular events identified by the parties which put the Application into its proper context.
  7. The Petitioner and the First Respondent are both substantial minority shareholders (as to c.41.35% each) in Valorem Holdings Limited ("VHL") which is the holding company for a group of English subsidiaries including Valorem Capital One Limited ("VC1"). Together these companies are referred to as "the English Companies". VHL also has a subsidiary incorporated in the Netherlands, the whole group being referred to as "the Companies". The business of the Companies is the development, manufacture and distribution of high-value perfumes including through a number of identified brands (referred to as "the Brands" albeit that this defined term has been expanded between orders made in 2023 and those sought before me).
  8. Prior to October 2023, the First Respondent was the executive director of VHL and the Petitioner was a non-executive director. The First Respondent and the Petitioner were parties to a Relationship Agreement which allocated responsibility for management to the First Respondent.
  9. On 9 October 2023, the Petitioner obtained interim injunctive relief against the First Respondent in anticipation of the issue of proceedings. That relief, granted by Caroline Shea KC (sitting as a Deputy Judge of the High Court) and set out in an Order dated 9 October 2023 ("the 2023 Order"), included (a) imaging orders against the First and Second Respondents in respect of the books and records of the English Companies and material pertaining to the business of the Companies; (b) orders against the First and Second Respondents for the preservation and delivery up of the books, records and information to which the imaging orders applied (particularly at paragraph 20.3 of the 2023 Order); (c) a passport order against the First Respondent; (d) orders removing the First Respondent as a director of the English Companies and appointing alternative directors in his place; and (e) orders requiring the First and Second Respondents to forward to the new management any future communication pertaining to the business of any of the English Companies or the Brands (particularly at paragraph 27.4 of the 2023 Order). For the purposes of the 2023 Order the term Brands did not include Seboni (a brand which features significantly in the Application).
  10. The judgment of the Deputy Judge is at [2024] BCC 1. The principal alleged wrongdoing relied upon was evidence that the First Respondent was causing the Companies to trade in Russia in breach of sanctions. The Deputy Judge concluded at [43] that the evidence made it highly likely that the First Respondent was aware of the relevant regulations relating to sanctions and was knowingly in breach of them. The Deputy Judge left out of account the other wrongdoing alleged at that point against the First Respondent (see [29]).
  11. On 11 October 2023, the Petitioner issued his petition under s.994 of the Companies Act 2006. The Petition included the allegations of trading in breach of sanctions as well as allegations relating to (i) the supply of products containing a banned substance (referred to as the Lilial Issue by the Deputy Judge) and (ii) a failure to protect the Companies' intellectual property rights.
  12. On 31 October 2023, the Court (ICC Judge Jones) approved an order by consent which recorded the timing and process by which the Respondents would comply with the orders for delivery up of books, records and information under paragraph 20.3 of the 2023 Order. That process included the application of search terms to four identified email accounts. As I understand it, the search terms were essentially the names or email addresses of individuals or entities which were identified as persons with whom the Respondents had dealt for the purposes of the business of the Companies. The evidence of Mr Mugerwa, the Petitioner's solicitor, for the Application is that 260,946 documents were delivered up between 27 October and 10 November 2023.
  13. The interim relief granted in the 2023 Order was considered by Freedman J at the adjourned return date on 9 and 10 May 2024 and, by an order of the Judge dated 5 July 2024, the injunctive aspects of the 2023 Order (paragraphs 15 and 27) were continued until judgment on the Petition. The Judge also declined to undo the orders by which the management of the Companies had been transferred from the First Respondent to new management including the Petitioner. The judgment of Freedman J is at [2024] EWHC 1737. In it the Judge concluded, among other things, that there was a high degree of assurance that the allegations in relation to Russian sanctions would be made out at trial (see [98]). As with the Deputy Judge, the focus was on the allegations relating to Russian Sanctions albeit that the Judge was also able to make comments about certain other allegations including in relation to furlough fraud by the First Respondent.
  14. In addition to dealing with the injunctive relief, Freedman J also gave directions by an Order dated 31 July 2024 for the service of statements of case in the Petition which resulted in the service of Points of Claim on 25 October 2024, Points of Defence on 29 November 2024 and Points of Reply on 20 December 2024. The Points of Claim, to which I will return in due course, identify a much wider range of wrongdoing said to amount to unfair prejudice than was before the Judge.
  15. On 31 January 2025, a further 61,892 documents were provided by the Respondents. As Mr Mugerwa explains, these documents were located on the First Respondent's laptop and two iPhones which had been seized by HMRC on 10 October 2023 and so had not been imaged or searched pursuant to the 2023 Order. Those devices had been returned to the First Respondent by HMRC in late 2024 and were then imaged and searched for the purposes of the provision of the books, records and information relating to the English Companies/Companies.
  16. The Application was issued on 20 March 2025. It was supported by Mr Garofalo's third affidavit ("Garofalo 3"), the second affidavit of Mr Mugerwa ("Mugerwa 2"), and the first affidavit of Mr Hildebrand ("Hildebrand 1"). Neither of the Respondents served any evidence in response to the Application although there were various factual statements made in correspondence written by them or by the First Respondent's new solicitors.
  17. The Petition is listed for trial for 10 days commencing in a 5-day window between 23-28 June 2025. At the CCMC in March 2025 which I have referred to above, the Deputy ICC Judge ordered the following principal procedural steps:
  18. 16.1. Disclosure shall be given by 28 April 2025. This is of particular relevance to the applications by the Petitioner for the provision of documentation and information because the First Respondent says, as a general point, that those orders are unnecessary or disproportionate in circumstances where the First Respondent will give disclosure in a matter of weeks and now has the assistance of his new solicitors for that purpose. The response from the Petitioner is that it has no confidence that the First Respondent will comply with his obligations.

    16.2. Witness statements of fact to be exchanged by 19 May 2025.

    16.3. Expert reports to be exchanged by 2 June 2025.

    III The Application

  19. As I have mentioned above, the relief sought on the Application was extensive. The Petitioner summarised it as follows by reference to the paragraphs in the draft order which I was asked to make:
  20. 17.1. Paragraphs 5-6: a proprietary injunction against the First and Second Respondents with respect to Seboni, a particular perfume brand to which I will return below.

    17.2. Paragraphs 7-10: a freezing order against the First Respondent with respect to Seboni.

    17.3. Paragraphs 11-14: the provision of information by the First and Second Respondents pertaining to the proprietary assets and their personal assets, said by the Petitioner to be necessary to police the proprietary and freezing injunctions. The Petitioner also said that information regarding the proprietary assets also forms part of the business of the Companies and falls within the scope of the Information required pursuant to the 2023 Order.

    17.4. Paragraphs 15-17: information identifying other entities through which the First Respondent has caused the business of the Companies to be traded (referred to as the "Additional Trading Entities" or "ATEs").

    17.5. Paragraph 18: details of the trading undertaken by the Additional Trading Entities.

    17.6. Paragraphs 19 to 21: the identification by the First and Second Respondents of their personal bank accounts and the provision of bank statements pertaining thereto.

    17.7. Paragraph 22: information pertaining to a bank account referred to as "the Chase Account".

    17.8. Paragraphs 24 to 26: the provision of emails pertaining to the operation of the business of the Companies.

    17.9. Paragraph 27: the provision of emails and other communications with specific individuals with whom the business of the Companies has been operated.

    17.10. Paragraph 30: further injunctive relief against Mr Crisp requiring him to use his best endeavours to procure the new management's immediate access to the Chase Account.

    17.11. Paragraph 31: orders prohibiting the First and Second Respondents from deleting data which they are required to provide under paragraphs 15 and 24-25 until after the trial of the Petition. I note that paragraph 5.2 also requires the preservation of documents relating to the assets which are the subject of the proposed proprietary injunction.

  21. Although some of these heads of relief are related (for example, the provision of information as to assets in support of the proposed freezing order), many were also advanced on a free-standing basis or for several different reasons and I will therefore need to consider each in turn below.
  22. The Petitioner also relied on what he said were concessions on the part of the Respondents in the correspondence after the Application was served. The First Respondent said that the proposals made in this correspondence, some of which was written by the Respondents acting in person before the First Respondent instructed his new solicitors, were by way of attempts to compromise the Application and, those attempts having been rejected, they were no longer operative. I do not consider that I should treat the Respondents as bound by the offers or proposals made in the correspondence albeit that the fact that certain proposals were made does provide an indication of what was considered by the Respondents to be possible.
  23. The Application also sought a pre-emptive unless order against the First Respondent with the effect that his Points of Defence would be struck out if he did not comply in the future with such orders as I make as set out below. Although this order was dealt with very briefly in the Petitioner's skeleton argument (which argued that it was justified by reason of the First Respondent's alleged breaches of the 2023 Order), it was not the subject of any oral submissions by the parties at the hearing. As such, it is unclear to me whether or not it is still sought by the Petitioner. However, I should say that I was not persuaded on the materials I have read so far that it would be appropriate to make such an unless order looking forward and based on potential breach of an order which has not yet been made, particularly where it is really based on alleged breaches of an earlier order but no contempt proceedings have been initiated. Further, there was simply not the time at the hearing for the Court to consider in the required detail whether the 2023 Order has or has not been breached and, if so, in what respects. As might be expected, the focus was on the orders which were now sought.
  24. (i) Proprietary injunction: paragraphs 5-6

  25. The Petitioner seeks both proprietary injunctive relief against the Respondents in relation to the profits which have been (or may have been) and will be made from the sale of perfumes under a brand called Seboni. The sales of this brand are also relevant to the freezing order sought against the First Respondent and the provision of information and documentation in paragraphs 14 and 27 in particular (and more generally anywhere where the defined term Brand is used as it is one of the brands within that term, unlike in the 2023 Order).
  26. I will deal first with the proprietary relief. By paragraph 5 of the draft order, the First and Second Respondents would be prevented from disposing of the Proprietary Assets which are defined, broadly speaking, as the profits from the sale of Seboni-branded products, any assets purchased with those profits, and the Seboni trademark itself (see paragraph 6). The draft order envisaged that the profits would be calculated by a process of deducting relevant costs from the proceeds of sale (with such costs having to be approved by the Petitioner's solicitors). However, Mr Bailey KC accepted that this proposed involvement of his instructing solicitors went too far.
  27. The evidence relied on by the Petitioner – particularly Garofalo 3 at paragraphs 13-56 - explained in detailed terms how he had been able to identify that sales of Seboni-branded products were now taking place and that it was the First Respondent who was responsible for these sales including through a number of distributors or retailers who had also previously sold or were still selling brands owned by the Companies. In particular, a test purchase of a Seboni perfume made in January 2025 showed that the bottle was stamped with the postcode of the Respondents' property in England and was in the same design as produced by the Companies' graphic designer, Mr Hildebrand, in 2023.
  28. I did not understand that it was disputed that sales of Seboni were taking place. Rather the First Respondent had asserted in correspondence (albeit not in evidence) that those sales had not been profitable. Further, the First Respondent's principal argument advanced by Mr Nicholls KC was that proprietary injunctive relief should not be granted because there was no properly pleaded proprietary claim to which the proposed order could be in support of.
  29. I agree with the Petitioner that interim proprietary relief is available to a Petitioner under s.994 as a matter of principle. The Court has very wide powers under s.994 which would include making orders that a respondent has to account to the company which is the subject of the petition (see Sikorski v Sikorski [2012] EWHC 1613 at [71]). It therefore follows that interim relief should be available in petition proceedings to preserve assets which will be the subject of a claim to such an account. These assets could include profits made as well as other tangible or intangible assets.
  30. Further, there was no dispute between the parties that the test for a proprietary injunction is that derived from American Cyanamid as applied in Madoff Securities Ltd v Raven [2012] IL Pr 15 at [127]. It is necessary therefore for the Petitioner to show that (i) there is a serious issue to be tried, (ii) the balance of convenience is in favour of granting an injunction, and (iii) it is just and convenient to grant the injunction.
  31. If Mr Nicholls KC is correct that there is no pleaded proprietary claim, that would mean that there is not a serious issue to be tried for the purposes of the first part of the test. It is necessary therefore to look at the way in which the case in relation to Seboni has been pleaded so far:
  32. 27.1. The Points of Claim (from October 2024) allege in paragraphs 100-104 that the First Respondent purchased the Seboni brand through a corporate vehicle of his in 2012; that, in 2021, a supplier of the Companies was instructed to create presentations and bottle designs for the Seboni brand; that, in 2022-2023, the First Respondent instructed employees of the Companies to design materials including bottles, packaging and artwork for the Seboni brand; that, in July 2023, the First Respondent (secretly) caused one of the Companies to order 20,000 bottles and boxes for the Seboni Brand; and finally that, in July 2024, the Seboni trademark was registered in the name of a UAE entity controlled by the First Respondent.

    27.2. The pleading of these factual matters leads then to paragraph 105 in which the complaint is that the First Respondent had used the Companies' resources for his own benefit, had "utilised a business opportunity which could have been exploited by the Companies", and had acted in conflict of interest. Paragraph 105 is then repeated in paragraph 111.10 where the use of the Companies' resources for the First Respondent's personal gain is set out as a particular of unfair prejudice.

    27.3. As regards relief, paragraph 114.2 seeks an order that the First Respondent pay a sum equal to the loss and damage sustained by the Companies by reason of the First Respondent's breach of duty (fiduciary or otherwise) and paragraph 114.3 seeks an account from the First Respondent in respect of any profits made from either (i) exploiting any business opportunity or asset belonging to the Companies or (ii) from competing with the business of the Companies.

    27.4. The First Respondent's response in paragraphs 78-83 of the Points of Defence was, amongst other things, to admit his purchase of the Seboni brand; to assert that the work undertaken by the Companies' employee was done with a view to "Seboni being transferred to one of the Companies if it proceeded" (second sentence of paragraph 80) and that it was his intention to "bring the Seboni brand within the group and develop it from there" (in the final sentence of paragraph 81); to assert that the Petitioner knew of the First Respondent's interests in Seboni; and to deny that there was any use of the Companies' resource for his sole benefit (in the third sentence of paragraph 83).

    27.5. In paragraphs 73-74, the Points of Reply deny the second sentence of paragraph 80 in the Defence referred to above and allege that the First Respondent had treated the Seboni brand as if he owned it.

  33. In these circumstances, Mr Nicholls KC says that there is no pleaded proprietary claim in relation to the Seboni brand or the profits made from it. Indeed, he says that the pleaded case set out above is inconsistent with any claim that Seboni is owned by the Companies. Rather the complaint is the very opposite, that the Companies' resources were expended on a brand which was owned by someone else, the First Respondent.
  34. Mr Bailey KC's response is that:
  35. 29.1. There is an adequate pleading of the First Respondent's breach of duty in relation to Seboni and a plea that he must account for such breach. As regards the relevance of the latter point, Mr Bailey relies on the confirmation given recently by the Supreme Court in Rukhadze v Recovery Partners GP Ltd [2025] UKSC 10 that, where a fiduciary makes profits from a fiduciary relationship, those profits are treated by equity as held on constructive trust for the principal from the moment of their receipt by the fiduciary.

    29.2. The intention in any event is to amend the Points of Claim to make explicit a proprietary claim to the Seboni brand and/or opportunity. Mr Bailey KC submitted that the fact that such an amendment may be proposed is a reflection of the fact that, when the Points of Claim were prepared, the Seboni opportunity had not been monetised and therefore the pleading is, to an extent, lagging behind the discoveries being made as to the activities of the First Respondent.

    29.3. Standing back, the First Respondent has effectively admitted that the Seboni brand belongs to the Companies. In addition to the First Respondent's pleading of his own intention, the Petitioner also points to the fact that, in a witness statement dated 24 April 2024, the First Respondent said that "Recently the Companies have been working towards re-launching [Seboni] (on the basis that the Valorem Group would do the manufacturing and receive all the profits)." I note in passing that this witness statement also estimated the operating profits for the first run of sales of Seboni at £200,000.

  36. I have sympathy with Mr Nicholls's submissions in relation to the state of the pleadings. Although the Points of Claim do, for example, refer to Seboni being an opportunity, the detail of the complaint is about misuse of the resources of the Companies. It is certainly correct therefore that it could have been pleaded much more clearly that a proprietary claim was made in respect of Seboni.
  37. However, despite the submissions made on behalf of the First Respondent, I have concluded that there is a sufficient plea in relation to Seboni which encompasses a proprietary claim. There is a claim that Seboni was an opportunity which the Companies could have taken advantage of, that the First Respondent acted under a conflict of interest when he took steps in relation to the Seboni brand while still a director of the Companies, and that he must account in respect of that breach. The fact that the pleadings concentrate on the use (or misuse) of Companies' resources on the brand reflected the position at the time when the statements of case were prepared, namely that the brand had not, it appears, been launched such that the most direct consequence of the breach would have been that these resources had been used for a brand which remained dormant but sat formally outside of the Companies. However, the claim does not seem to me to be limited simply to claiming back such resources and encompasses an obligation to account in respect of the conflict which is alleged to arise from the dealings with the Seboni brand. This would include an account of profits made from the opportunity.
  38. Given that a sufficient claim is pleaded, I therefore need to apply the test for proprietary relief described above:
  39. 32.1. While it would not be sufficient for there to be a serious issue to be tried on the Petition in general, on the evidence which I have seen about the circumstances in which the Seboni brand was developed using the Companies' resources and is now being monetised by the First Respondent, there is a serious issue to be tried on this aspect of the claim specifically, namely that the First Respondent's dealings with the Seboni brand amount to a breach of fiduciary duty in respect of which he may be ordered to account at trial.

    32.2. Turning to the balance of convenience, I am satisfied that it favours the grant of proprietary relief. As I have explained, the claim encompasses a proprietary claim in respect of property said to belong to the Companies – both profits and intellectual property rights – and the Court at trial may order these to be transferred to Companies. There is therefore a good reason to preserve these assets so that such an order would be effective. Further, it is not clear to me that the First Respondent's resources would extend to paying damages (or equitable compensation) in respect of the alleged breaches in circumstances where he may also be liable for additional amounts and costs. On the other side of the balance, the First Respondent has said in correspondence that no profits have been made and therefore the impact of the relief will be limited. Further, as the trial is listed to come on shortly, the relief would only apply for a relatively limited period. The First Respondent will also be protected by the cross-undertaking from the Petitioner.

    32.3. Finally, it is just and convenient to grant the proprietary relief. Indeed, as I will explain below, relief focussed on the profits made from what seem to be the initial sales of the Seboni brand (plus provision of information about such sales) is a more just and proportionate way to preserve assets which the Companies say belong to them than a freezing order, particularly where the First Respondent says that no profits have been made.

  40. I will therefore make the proprietary relief sought against the First Respondent.
  41. Turning to the Second Respondent, the position is somewhat different because there is no claim against her in the Petition and so there is no prospect of relief being ordered against her at trial. Rather, the basis for her inclusion in the proprietary order is that the First Respondent is said to arrange for her to hold his assets; that she was implicated in his previous wrongdoing in relation to Russia; and that she committed a breach of the 2023 injunction and failed to disclose email accounts.
  42. I do not consider that the second and third of these factors, even if I were to accept them, would justify an order in the terms sought. Rather, it is the first factor which is relevant because there is evidence that the First Respondent has, or says that he has, put assets into his wife's name (see in particular Garofalo 3 at paragraph 167).
  43. Further, while there is no direct evidence that the Second Respondent has personally received any of the relevant proceeds of sale, there is evidence that the monetisation of the brand is being carried out through two companies – Stamford Brayham FZE and Stanford Brayham Limited – and the second of these (which was identified on a Russian website selling Seboni products as the producer of them) is a company of which the Second Respondent is a director (see Garofalo 3 paragraphs 18-19). She may well therefore have the ability to control the proceeds of sale of the products.
  44. In these circumstances, it is necessary to include the Second Respondent within the proprietary relief in order to ensure that the orders against the First Respondent are effective.
  45. As regards the detail of the relief, the order should apply simply to the profits derived from the sale of any Seboni product. Although the draft order included a mechanism for calculating such profits referring to the proceeds of sale, less "associated costs of sale" which had been "properly incurred", these provisions introduce more room for doubt in relation to the scope of the order than simply specifying the profits. Rather, the starting point for any account (if ordered in due course) will be that the profits have to be accounted for and the risk will be on the Respondents if they have used the proceeds of sale to defray costs which are not allowed on the account. It is the Respondents who will be best placed to identify the profits which have been generated.
  46. (ii) Freezing order: paragraphs 7-9

  47. In addition to the proprietary order, the Petitioner seeks a freezing order against the First Respondent up to an amount of £300,000 representing £200,000 for the Seboni-related profits and an estimate of £100,000 for the costs of this part of the claim. The figure of £200,000 was given by the First Respondent in a witness statement as referred to above. He has since said in correspondence that no profits have been made.
  48. The First Respondent says through Mr Nicholls KC that there is no need for a freezing order because the First Respondent has two assets in the jurisdiction – his property in England and his shares in VHL – which he would undertake not to dispose of (the shares being, he says, illiquid in any event and incapable of being charged under VHL's articles of association). These assets are, he says, worth significantly more than the sum which is sought to be frozen. The First Respondent also says that the Petitioner has not demonstrated that there is a risk of dissipation and that the matters which the Petitioner relies on do not support an inference that the First Respondent is likely to dissipate his assets.
  49. My instinctive reaction to the application for a freezing order was the same as that of Flaux J (as he then was) in the Madoff case to which I have referred in paragraph 36 above (see [143] of that judgment) – if a proprietary order is made what is the need for a freezing order?
  50. Although Flaux J was ultimately persuaded in that case that a freezing order was justified, I am not satisfied that such an order should be made here, particularly in the light of the undertakings offered by the First Respondent. For the reasons given below on the basis of the undertakings, it is not just and convenient that a freezing order be made in addition to the proprietary relief:
  51. 42.1. The quantum of the profits which justify the amount of the proposed freezing relief is inherently uncertain. While the First Respondent estimated it at £200,000 it is unclear how much of the "first run" has been sold and at what level of profits. These uncertainties are more appropriately and justly dealt with by an order to freeze those profits, particularly where they are yet to be earned.

    42.2. The costs included in the proposed order seem excessive to me - £100,000 is 50% of the estimated value of the relevant claim which is too high.

    42.3. The Petitioner says that the freezing order is required because the assets identified by the First Respondent are uncertain in value and may not be sufficient to satisfy all of the orders which the Petitioner may obtain, including other orders to account or for damages and costs. I do not agree however that this would justify a worldwide freezing order over all of the First Respondent's assets in respect of one part of the claim and a relatively small one at that. By way of comparison, the Petitioner's estimated costs are in the order of £3 million. Moreover, under the draft order, the First Respondent would be entitled to dispose of his assets provided that £300,000 worth of assets are retained in the jurisdiction, which the First Respondent says they will be.

    42.4. The somewhat unusual nature of the proposed partial freezing order is highlighted by the fact that, although the monetisation of the Seboni brand appears to have started recently, many of the matters relied on to show a risk of dissipation have been known to the Petitioner for many months, if not longer. However, no freezing order was sought until relatively shortly before trial.

  52. In these circumstances, I decline to make the proposed freezing order but accept the undertakings offered. This means that it is not necessary for me to consider the detail of the submissions made by the parties in relation to risk of dissipation but those of the Petitioner on this issue seemed to me to be more persuasive.
  53. (iii) Information about assets and bank accounts: paragraphs 11-14

  54. Paragraphs 11 to 14 of the draft order provide for the provision of information and documentation in support of the proposed injunctive relief I have considered above. My conclusions in relation to these paragraphs flow substantially from the conclusions I have reached above.
  55. Paragraph 11.1 would require the First and Second Respondents to provide information about the proceeds of sale of the Seboni-branded products in support of the proprietary relief which I have ordered. This is an order ancillary to the injunctive relief of the type contemplated by Jacobs J in Public Institution for Social Security v Al Rajaan [2020] EWHC 1498 at [49]. I agree with the Petitioner that such an order is required in this case and is proportionate in order for the Petitioner to understand the assets which are subject to the injunction now that the Seboni brand is being monetised. I will therefore make an order as sought save that, as explained further in the paragraph immediately below, the relevant date for this information to be provided should be 25 April 2025 as agreed between the parties having seen a draft of this judgment. I should also make it clear that details of the Seboni Product Proceeds should be provided by the Respondents whoever they have been received by.
  56. I do not consider that it is necessary for the information to be provided once and then confirmed by affidavit (as suggested in the draft order at paragraph 11.1 and paragraph 12.1). This two-stage process is appropriate for without notice applications where the information is required quickly but the respondent then has an additional period to confirm it formally by affidavit. In the present case, the information should simply be provided once in a formal form by affidavit.
  57. I decline to make the asset disclosure orders in paragraphs 11.2 and 12.2 of the draft order as I have not made a freezing order. However, given the undertaking offered in relation to the English property, the First Respondent should provide the Petitioner with details and terms of all amount(s) secured on the property and details of the charge which Osborne Clarke have sought to place on the property including the nature of the proposed charge, the amount owed to Osborne Clarke and the status of the charging process. For the avoidance of doubt, this does not require disclosure of the document identified in paragraph 12.3 of the draft order which I do not consider needs to be disclosed for the Petitioner to understand the value of the equity in the property.
  58. As regards paragraph 14, which provides for the disclosure of documents relating to the Proprietary Assets, save as set out in paragraph 49 below, I do not consider that such an order in the wide terms proposed is proportionate or necessary at this stage. I have made clear above that I consider that a proprietary claim is sufficiently pleaded in relation to Seboni, and I will order the Respondents to provide information in relation to that brand and sales of it. It follows from the first of these conclusions that documents relating to Seboni, its sales, and what has become of the proceeds of sale will be relevant to the issues in the Petition and will fall to be searched for and disclosed on 28 April 2025. I agree with the First Respondent that a duplicative disclosure order is not justified at this stage by a fear that proper disclosure will not be given particularly as the provision of information which I have ordered will allow the Petitioner to monitor compliance with the disclosure obligations more closely. It will also remain open to the Petitioner to apply for specific disclosure if he considers that proper disclosure is not given. I would, however, urge the parties to consider carefully what is necessary and proportionate in the light of the very substantial amounts of costs which have been incurred so far.
  59. The one exception to this concerns disclosure of the account statements for the bank accounts into which the Seboni Product Proceeds have been paid which I do consider should be disclosed at the same time as the information is provided so as to provide the Petitioner with an understanding of where those Proceeds are and what remains of them. This is also consistent with the fact that I have concluded below that bank account statements for the ATEs should be provided. I therefore decline to make the order sought in paragraphs 14.1 and 14.2.1 of the draft order save to the extent explained here.
  60. The order at paragraph 14.2.2 – relating to communications with Rakbank – relates to the evidence at Garofalo 3, paragraphs 101-104. The Petitioner has seen communications with this bank which appear to relate to another perfume business being proposed by the First Respondent. Again, these documents appear to be relevant to the issues on the Petition and I would therefore expect to them to be disclosed without the need for an additional order.
  61. (iv) Information about ATEs: paragraphs 15-18

  62. The Petitioner seeks the provision of information from the First and Second Respondents relating to what he has described as the additional trading entities/ATEs. These are entities which satisfy two conditions:
  63. 51.1. the First or Second Respondent must have incorporated them or caused them to be incorporated (paragraph 15.1), entered into them in the case of a partnership (paragraph 15.2), or been a director or partner in them or had control of them (paragraph 15.3); and

    51.2. they are or have been involved at any time since 1 January 2015 in any aspect of the perfume or fragrance business of any Brand or Brand Product or have received any proceeds of sale of any Brand Product (subparagraphs (i) and (ii)).

  64. The information sought relates broadly to:
  65. 52.1. the creation, ownership and control of the entities (paragraph 16); and

    52.2. the details of all sales made by them after 1 January 2015 of any product identifying itself as or bearing the name of any of the Brands (paragraph 18.1).

  66. The Petitioner recognises that the first of these orders would be easier to comply with than the second as it proposes a significantly earlier date in paragraph 16 than that in paragraph 18 (there is a difference of nearly three weeks). I note also that paragraph 18.2 seeks provision of documentation rather than information and I will deal with this separately.
  67. The Petitioner says that the information is required to police the 2023 Order or falls within the scope of what has already been ordered under that Order or is necessary to fulfil the purpose of that Order which was to transfer the operation of the business of the Companies to the new management. In the alterative it says that the information is required for the purposes of CPR r.25.1(1)(g) as it relates to assets which may be the subject of an application for a freezing order.
  68. The principal complaint made by the First Respondent is that it is unclear how the disclosure sought in these paragraphs is related to the pleaded allegations, particularly given that the examples of ATEs identified in paragraph 16 of the draft order do not all appear in the statements of case. Reliance is also placed on the disclosure obligations which the First Respondent is under and the width of the orders sought (both in these paragraphs and elsewhere) which was described generally as extraordinary.
  69. As with the proprietary relief it is necessary to consider how this aspect of the claim is pleaded and why the proposed orders are said to be justified by the Petitioner.
  70. The Points of Claim include a number of allegations in paragraph 108 about the incorporation of further companies and entry into joint ventures by the First Respondent. These include Boadicea International FZC, Boadicea FZ Inc, and Boadicea Inc. This leads to a pleading that the First Respondent is obliged to account to the Companies in respect of dealings with these entities.
  71. Garofalo 3 then contains (between paragraphs 57-112) a detailed explanation of the additional material which the Petitioner has been able to identify which is said to show that the First Respondent was causing the Companies to sell products to intermediary companies which he owned or controlled and which then sold on those products for profit. This section of the evidence includes significant detail, for example, about an apparent joint venture between the First Respondent and two others (Mr Tiddy and Mr Pinicone) using Boadicea International FZC as the intermediary profiting at the expense of the Companies.
  72. As with Seboni, the Petitioner says that he continues to discover and understand the wrongdoing committed by the First Respondent as he considers the material which has been provided. This is why Garofalo 3 contains more detail than the Points of Claim which give the examples which were then known about in the sub-paragraphs to paragraph 108.
  73. While it is not appropriate for me to reach any conclusion about these matters at this stage, on its face, the material in Garofalo 3 gives rise to a strongly arguable case that the First Respondent was acting in breach of duty and would have to account in the manner alleged in the Points of Claim as referred to above. While the Points of Claim do not have the same level of detail as Garofalo 3, the pleading is not said to be exhaustive and the allegations of wrongdoing through the use of intermediary companies or joint ventures is sufficiently pleaded. Contrary to the submissions advanced on behalf of the First Respondent, there is therefore a clear link between the issues on the Petition and the information sought by the Petitioner in relation to the ATEs.
  74. I also agree with the Petitioner that information in the general categories sought is justified either as being ancillary to or as being necessary to give full and proper effect to the 2023 Order by providing the current management with information about the business of the Companies. I am concerned however, about the width of the proposed orders, particularly in paragraph 18, and the prospect that complying with them could disrupt the short timetable to trial or be disproportionate given that the evidence does not refer at this stage to substantial profits actually being made by the intermediary companies. Jacobs J referred in [19] of Al Rajaan cited above to the need for disclosure/information orders to be proportionate in the context of proprietary relief and the same limitation applies to orders in support of the 2023 Order.
  75. I have therefore considered both the time period covered by the draft orders and their scope:
  76. 62.1. Starting with the time period, while the orders cover some 10 years (dealings with the Brands or Brand Products after 1 January 2015), the evidence shows that Boadicea International FZC was incorporated around early 2015 (Garofalo 3, paragraph 59). Further, it is only necessary for the purposes of paragraph 15 to disclose details of entities related to the Respondents and which have been involved with the Brands which belong (or arguably belong) to the Company. I am therefore satisfied that the time period is justified.

    62.2. Turning to the content of the information required, I am satisfied that paragraph 15 is reasonable and justified as it requires a tightly focussed list of information (in paragraph 16) relating only to companies which satisfy the criteria I have identified.

    62.3. Paragraph 18 is different. It seeks details of all sales in a 10-year period and significant detail about those sales. I am not satisfied that an order of this width is justified at this stage of the proceedings when the First Respondent will need to give disclosure and prepare his factual evidence for trial. I consider that the Respondents should only be required to provide a less onerous set of information, limited to (a) the dates of the first and last sales so as to identify the time period of the sales, (b) their best estimate of the total volume and value of such sales, (c) the identities of the purchasers of the products, and (d) the bank accounts into which the proceeds of sale were paid. This information will enable the Petitioner to understand the scope of the use of ATEs.

  77. As with the information dealt with earlier, I do not consider that it is necessary for the information to be provided once and then confirmed by affidavit (as suggest in the draft order at paragraph 17 and the second part of paragraph 18). The information should be provided once in a formal form by affidavit. As with paragraph 45 above, the date for this should be 25 April 2025.
  78. As regards provision of copies of all communications between the ATEs and any customers, suppliers etc in respect of any of the Brands (paragraph 18.2), it seems to me that such communications within the control of the First Respondent would fall to be disclosed on 28 April 2025 (as the use of ATEs is an issue in the Petition) without the need for a separate order. I will not therefore make the order sought at paragraph 18.2.
  79. (v) Banking information: paragraphs 19-21

  80. Paragraphs 19-21 seek the provision of extensive banking information and documentation (account statements) in relation to the personal accounts of the First and Second Respondents and the ATEs I have dealt with above.
  81. I will not order the provision of the personal account information and documentation (paragraph 19.1 and part of paragraph 21 of the draft order). While this sort of order might have been justified had I made a freezing order against the First Respondent, I do not consider that a free-standing order to provide details of all bank accounts and statements for those accounts is justified whether pursuant to CPR Part 25.1(1)(g) or otherwise. Nor is such an order ancillary to or necessary at this stage to police the proprietary injunction which I have made. The Petitioner will have orders for the provision of information in relation to the Seboni brand and the ATEs (which seem to be connected to the monetisation of Seboni) which ought to be sufficient at this stage to make the proprietary inunction effective. Further, the issues in the Petition may well require the First Respondent to disclose account statements which contain relevant entries, but the draft order is considerably wider than this and I do not accept that it is justified or necessary at this point.
  82. However, the position is different with the bank accounts of the ATEs (paragraph 19.2 of the draft order). For the reasons given above, I will order the provision of information in relation to the incorporation/ownership and, to a lesser extent, the trading of the ATEs. I agree with the Petitioner that he should also be provided with the banking information in relation to the ATEs as that is necessary for the current management to understand the trading which the First Respondent has carried out through any of the ATEs and where the proceeds of sale of Brand Products have gone.
  83. As regards provision of copies of all of the bank statements for the ATEs (paragraph 21), it seems to me that, although the account statements containing relevant entries (such as the receipt of proceeds in relation to Brand Products) would fall to be disclosed on 28 April 2025, the provision of a full set of statements for the period identified in the order (from 1 January 2021) is necessary and proportionate given the nature of the evidence which the Petitioner has adduced about the apparently secret use of the ATEs. The production of these statements ought not to be onerous as they will have to searched for the purposes of disclosure in any event and it has not been suggested that these are documents which are not in the control of the Respondents. These statements should be provided on 28 April 2025 with the disclosure save for where they relate to the Seboni Product Proceeds which should be considered earlier for the reasons given above.
  84. (vi) The Chase Account: paragraphs 22 and 30

  85. The evidence in relation to the Chase Account is that it is an account set up in the name of VC Distribution LLC, an entity registered in Louisiana by Shannon Drake, who had acted as the Companies' distributor and then agent in the US. However, despite the account holder not being part of the Valorem group, the Petitioner says that it appears that the First Respondent had access to and may even have been able to operate the Chase Account and that it was treated as containing money at the Companies' disposal. It also appears that, as at 9 October 2023, the balance on the Chase Account was $77,640.37. The evidence supporting these arguments is found particularly in Garofalo 3 at paragraphs 128-159.
  86. There is a dispute about the origins of the Chase Account which can be seen form paragraph 108.4 of the Points of Claim which alleges that it was set up by the First Respondent and paragraph 86(4) of the Points of Defence which says that it was set up by the agent for one of the Brands in the US but without reference to the First Respondent.
  87. The Petitioner seeks three particular orders in relation to the Chase Account, namely that the First Respondent shall:
  88. 71.1. provide copies of any bank statements relating to the Chase Account which are in his possession or control (first part of paragraph 22);

    71.2. use his best endeavours to obtain copies of any further bank statements pertaining to the Chase Account from any third party (second part of paragraph 22); and

    71.3. use his best endeavours to co-operate with the directors of VC1 and follow their instructions to procure for them immediate access to the Chase Account (paragraph 30).

  89. These orders are said to be justified either as falling within the scope of what has already been ordered under the 2023 Order or by reason of the proposed freezing order against the First Respondent (and a possible freezing order against the Second Respondent). The 2023 Order required the First Respondent to provide details of any bank account in his name or under his control through which the business of the Companies was carried on (paragraph 17.2).
  90. The First Respondent says, in response, that the Chase Account is held by a third party not one of the Companies, that bank statements which are relevant will fall to be disclosed in the Petition pursuant to the procedural direction for disclosure, and that, as regards the relief in paragraph 30, it is in the nature of final relief (so should not be granted at this stage) and is not something which is sought in the Petition.
  91. It seems to me that the first of the justifications advanced by the Petitioner is sufficient and the other falls away as I have not made the freezing order sought. In my view, the evidence which I have seen and referred to briefly above provides, at this stage, good reason to believe that the monies held in the Chase Account (at least as at 9 October 2023) belong to the Companies and that the new management therefore need to understand what funds are held in that Account and how they were accumulated though the provision of account statements. Further, I am not satisfied that disclosure of this information and documentation, which arguably belongs to the Companies and to which it would be entitled even if there was no issue in the Petition relating to the Chase Account, should be left to disclosure.
  92. This conclusion justifies the substance of orders sought in paragraph 22 as against the First Respondent. I do not consider that the order should apply to the Second Respondent who does not appear to have had any dealings with the Chase Account. Further, it does not seem to me that, given the relatively small balance on the Chase Account I have referred to above and the fact that some 18 months has passed without access to the statements, these documents are required within 3 days (as was proposed in the draft order). Accordingly, the time period in paragraph 22 should be the same date as disclosure is currently due, namely 28 April 2025 so that the process of the identification and provision of documents does not happen in stages or on a piecemeal basis particularly as the relevant dates (3 days from this judgment and the date for disclosure) are close together. I would note that this does not mean that, if the date for disclosure moves to a later date, the date for provision of the documents ordered here (or in any other parts of this judgment) should change.
  93. As regards the order sought at paragraph 30 in relation to providing access to the Chase Account, I would also be prepared to make this order, albeit that it would be on terms as to the use to which that access was put by the new management. Although I consider that there is good reason to believe that the monies held in the Chase Account (at least as at 9 October 2023) belong to the Companies, it would not be appropriate for me to determine this question of fact at this stage, particularly where the account is in the name of a third party who is not before the Court, and allowing access to the account should not encompass the new management dealing with any sums in the Account without the true ownership of it having been finally determined.
  94. (vii) Emails: paragraphs 24-26

  95. By paragraphs 24 and 25 of the draft Oder, the Petitioner seeks provision of emails which pertain to the business of the Companies or the selling, marketing, or distribution of the Brands from three accounts – two for the First Respondent and one for the Second Respondent. Although the draft order did not apply the subject matter limitation to the second of the First Respondent's accounts, Mr Bailey KC confirmed in the course of his submissions that it should apply (and I agree).
  96. The Petitioner's evidence, particularly Garofalo 3 at paragraphs 169-198, is that he has identified a material number of email accounts used by the First and Second Respondents for the Companies' business beyond those imaged and searched in October 2023 which were either undisclosed or where the position of the Respondents in relation to the accounts can be shown to be wrong or has changed. However, he has confined the relief sought only to three specific accounts:
  97. 78.1. Account 1 which is an account which Mr Crisp said in an affidavit dated 17 October 2023 (for the purposes of complying with the 2023 Order) was "unused". However, the Petitioner has identified 499 emails sent to or from this account between 2013 and 2023 and has demonstrated that they include material relating to the business of the Companies (Garofalo 3 at paragraph 180).

    78.2. Account 2 which is an account disclosed by Mr Crisp but which was said to be inaccessible as it was on the laptop seized by HMRC. As that has now been returned the account should be accessible. It was an account which was in use in October 2023 (Garofalo 3 at paragraph 181).

    78.3. Account 3 which is an account which the Second Respondent said in 2023 was used only for personal matters. However, the Petitioner has identified at least a limited number of emails from this account in 2022 and 2023 which relate to the business of the Companies (Garofalo 3 at paragraphs 192-193).

  98. The justification for the order sought is that these three email accounts ought to have been disclosed, imaged and searched pursuant to paragraphs 7, 9 and 20 of the 2023 Order and that the same process should be applied to them as to the four email accounts referred to in the order of ICC Judge Jones dated 30 October 2023 along with the application of certain specific search terms which had been identified as of particular relevance to the Companies' business. The approach adopted in 2023 resulted, as I understand it, in the provision of documents which were responsive to search terms attached to the order of ICC Judge Jones without a further review for relevance.
  99. The First Respondent says that the provision of documents from his email accounts is a matter for disclosure and he points to the width of the orders sought in paragraphs 24 and 25 which seek "any email" sent or received for the purpose I have identified above.
  100. It seems to me that the justification for the orders made in October 2023 - to provide the new management with access to the books, records and information belonging or relating to the Companies - remains at least as relevant today as it was then particularly given what is now known about the operations of the Companies. The provision of this material to the new management is separate from disclosure in the proceedings in that it is not limited to issues in dispute on the Petition. The new management would wish to see material about the Companies' business generated by the First and Second Respondents while they had control of that business irrespective of whether or not it would fall to be disclosed.
  101. In these circumstances, I will make the orders sought in paragraphs 24 to 26 for the purposes of providing the new management with the Companies' documents and information subject to the following points:
  102. 82.1. The process set out in paragraph 26 will be the means by which the orders in paragraphs 24 and 25 are complied with rather than amounting only to "partial compliance" as proposed in the draft order. While I am prepared to include the additional search terms now identified by the Petitioner, it would be disproportionate to order the production of "any" emails with the search process in paragraph 26 being only part of the way that the orders are complied with. That process ought to result in the identification of documents about the Companies' business and those documents will be produced without a review for relevance.

    82.2. Further, the process set out in paragraph 26 shall be applied to the email accounts in respect of documents only up to 10 October 2023 when the 2023 Order was executed. In the period up to this date, the First and Second Respondents were managing or involved with the business of the Companies and so documents which respond to the search terms are overwhelmingly likely to be related to the Companies business. However, after that date, I cannot be sure that responsive documents will relate to the Companies as the First and Second Respondents were no longer managing its business. Emails sent or received after that date are, in any event the subject of paragraph 27 of the draft order (and paragraph 27 of the 2023 Order) and I consider this below.

    82.3. The date for provision should be 28 April 2025 and not 24 April so as to align it with disclosure.

    (viii) Communications with specific individuals: paragraph 27

  103. The Petitioner seeks delivery up from the First and Second Respondents of all correspondence sent to or received from a list of identified individuals on or after 10 October 2023 which pertain to the Brands, Brand Products or their proceeds of sale, the Proprietary Assets or the Chase Account.
  104. Paragraph 27 contains a more onerous obligation than contained in paragraphs 24-26 as it would require a document-by-document review to identify responsive documents albeit that the list of senders/recipients of relevant communications is relatively limited.
  105. The justification for paragraph 27 given by the Petitioner is that the 2023 Order (a) prevented the First and Second Respondents from initiating any communication for or on behalf of the English Companies with employees, customers, distributors or suppliers (paragraph 27.2.3) and (b) required the First and Second Respondents to forward to the new management any communications from such people pertaining to the business of the English Companies or the Brands (paragraph 27.2.4). The purpose of these provisions was for communications relating to the English Companies or the Brands to be moved from the First and Second Respondents to the new management.
  106. The Petitioner says that he has identified evidence which shows that the First Respondent in particular has continued to deal with the Companies' business or Brands, notably Seboni, and that these dealings have involved or are likely to have involved the individuals at paragraphs 27.2 to 27.6 of the draft order (as set out in paragraphs 20-55 of Garofalo 3 where their roles in relation to Seboni are explained). The individual identified in paragraph 27.1 of the draft order (Shannon Drake) is related to the Chase Account.
  107. As with paragraphs 24-25, the First Respondent says that the provision of documents is a matter for disclosure, and he points to the width of the orders sought in paragraph 27.
  108. The principal question therefore is whether the Petitioner is entitled to these orders in support of or by way of expansion upon the 2023 Order or should he await disclosure in the proceedings.
  109. In my view communications with Shannon Drake in relation to the Chase Account will be caught by the disclosure process and there is no need for a free-standing order in relation to her. As I have explained above, there is a dispute on the face of the pleadings about the ownership of the Chase Account and the Points of Claim include a claim that the First Respondent must account for his dealings with the Chase Account (in paragraph 110). Communications between the First Respondent and Ms Drake would seem to me to be disclosable in these circumstances.
  110. As regards the remainder of paragraph 27, this is directed very largely at dealings with the Seboni brand albeit that it ranges wider than just that (as it encompasses all of the Brands and more). I have explained above why I will not order disclosure of documents relating to the Proprietary Assets at this stage. The same reasoning applies to paragraph 27 where the issues said to give rise to the need for this order all seem to me to be issues in the Petition (as they relate to Seboni, or the ATEs, or the First Respondent's alleged breaches of duty more generally) and so I would expect relevant documents to be disclosed on 28 April 2025.
  111. In these circumstances, I conclude that it is not necessary or proportionate to make the orders sought for disclosure of documents which would potentially entail a separate and extensive disclosure exercise at a time when the disclosure in the proceedings needs to be given in short order in order to keep the proceedings on track to trial in June 2025. I will not therefore make the order sought in paragraph 27.
  112. (ix) Orders relating to the deletion of emails and documentation: paragraph 31

  113. The Petitioner seeks injunctive orders which prevent the First and Second Respondent from deleting the emails to which paragraphs 24 and 25 apply (paragraph 31.1) and require them to preserve documents relating to the trading of the ATEs referred to in paragraph 15 (paragraph 31.1).
  114. The First Respondent says that he is already subject to obligations to preserve documentation by reason of the litigation and that the Respondents are both subject to paragraph 15 of the 2023 Order which was continued by Freedman J. The latter relates to the preservation of the Information as defined in the 2023 Order.
  115. While there is a degree of duplication between the proposed orders and the continuing provision of the 2023 Order, I agree with the Petitioner that the additional orders sought in paragraph 31 should be made:
  116. 94.1. As regards the email accounts caught by paragraphs 24 and 25 of the draft Order, but for the Respondents explanations of these accounts which I have referred to above, these accounts would have been preserved by imaging. Given that the Petitioner has shown both that the accounts contain documents relating to the business of the Companies and that the explanations given in 2023 were (at the very least) wrong, the order at paragraph 31.1 is justified and will have the same effect as should have resulted from the 2023 Order but without going to the expense of imaging at this later stage.

    94.2. As regards the ATEs identified pursuant to paragraph 15, the order will make it clear that the documents of these entities should be preserved and reduce the scope of any disputes about whether they were covered by the 2023 Order or the obligations of preservation in the proceedings.

    IV Conclusion

  117. I hope that the conclusions set out above will enable the parties to agree the terms of a draft order to reflect my conclusions to enable that order to be made as soon as possible and before the end of the legal term.
  118. I will hear the parties separately in relation to costs and any other consequential matters which do not need to be dealt with before the end of term.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: https://www.bailii.org/ew/cases/EWHC/Ch/2025/966.html