1) Barclay Pharmaceuticals Ltd and Others v 1) Waypharm LP (a Ltd partnership incorporated under the laws of England and Wales) and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Gloster |
| Judgment Date | 14 March 2013 |
| Neutral Citation | [2013] EWHC 503 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 2008 Folio 239 |
| Date | 14 March 2013 |
[2013] EWHC 503 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Rolls Building,
7 Rolls Buildings,
London EC4A 1NL
Mrs Justice Gloster, Dbe
Case No: 2008 Folio 239
Miss. Barbara Dohmann QC and Tom Mountford Esq (instructed by Charles Russell LLP) for the Claimants
Ms. Marcia Shekerdemian (instructed by Taylor Wessing LLP) for the Court-appointed Receiver
Mr. Antoine Mekni was not represented and did not appear, but made written submissions to the Court
Hearing dates: 18 th October 2012
Additional written submissions: 19 th November 2012; 28 th November 2012;
Introduction
The previous history of this matter, prior to my giving judgment in favour of Barclay Pharmaceuticals Limited ("the First Claimant") in February 2012, is set out in my judgment reported at [2012] EWHC 306 (Comm). Of particular relevance for present purposes is an ex parte order made by Burton J on 10 December 2009, whereby Mr. Geoffrey Carton-Kelly ("the Receiver"), a partner in Baker Tilly, chartered accountants, was appointed as receiver of the "Receivership Assets" as therein defined. That order was continued on its return date on 15 January 2010.
In my judgment I adjudged the First, Second and Fourth Defendants liable to the First Claimant in the amount of £8.7 million in relation to a fraudulent operation of letters of credit. I made adverse findings as to the credibility of Mr. Antoine Mekni ("the Second Defendant"). He was represented by solicitors and leading counsel who prepared his case before coming off of the record shortly before trial. The Second Defendant was unrepresented throughout the trial but engaged the same solicitors and leading counsel to prepare his closing submissions.
At the outset of the trial, the Second Defendant announced his intention to make a claim against the Claimants and the Receiver for many tens of millions of euros. The Second Defendant had at no time sought to vary or discharge either the Freezing Order against him and Waypharm LP or the Receivership Order. Throughout the trial the Second Defendant repeatedly reiterated his intention to bring such claim against the Claimants and the Receiver.
Judgment was handed down on 28 February 2012. Late in the afternoon of 27 February 2012, the Second Defendant emailed the Court stating that he could not attend Court because of his health issues; he said that he needed to "undergo heavy checks and bio explorations" the following week. The Second Defendant asked the Court to give him until early April 2012 to bring his (purported) claims against the Claimants and the Receiver.
On the handing down of judgment (which the Second Defendant did not attend), and in light of the Second Defendant's late representations by email that he still wished to bring claims against the Claimants and the Receiver, I gave directions for a further hearing to consider any representations in relation to post-judgment applications. These included a direction that if the Second Defendant proposed to make any application against the Claimants and/or the Receiver he do file and serve any such application together with any supporting evidence by not later than 19 April 2012.
On 18 April 2012 the Second Defendant filed a claim titled "Application in respect of the Receivership against the Receiver and the claimants severally and individually" ("the Claim").
Upon receipt of the Claim, the Claimants determined that they should apply to strike out the claim as baseless, as set out below. The Claimants and the Receiver filed and served skeleton arguments for the consequential hearing on 23 May 2012 and the Claimants informed the Judge that they would seek to strike out the claim against them.
At the hearing on 23 May 2012 of all outstanding post-trial applications, I made orders for the continuation of the receivership and freezing orders, and that the First, Second and Fourth Defendants do make a payment on account of costs in the amount of £1 million. I also gave certain case management directions for the future conduct of the Second Defendant's claim against the Claimants and the Receiver, including orders:
i) that the fourth witness statement of the Receiver dated 17 May 2012 and the skeleton argument filed on behalf of the Receiver dated 21 May 2012 be treated as the Receiver's response to the Second Defendant's application dated 18 April 2012;
ii) that the Second Defendant do serve any evidence in response to the Receiver's fourth witness statement and skeleton argument and paragraphs 10–22 of the skeleton argument filed on behalf of the Claimants dated 21 May 2012, by way of a witness statement verified by a statement of truth with any evidence exhibited thereto, by 4pm on 4 July 2012;
iii) that the Claimants and the Receiver be at liberty to respond to any evidence so provided by the Second Defendant within 21 days of service of such evidence.
In other words I provided that all evidence was to be given in writing prior to the hearing.
The Second Defendant attended this hearing, without any apparent health problems preventing him from participating in the proceedings.
To date, the Second Defendant has apparently recognised his liability to the Claimants in respect of the judgment sum but, to date, has not paid the judgment sum or appealed the Judgment. A little over £9.7 million is now owed by the Second Defendant to the Claimants.
A hearing was listed pursuant to the directions order dated 23 May 2012, for 18–19 October 2012, to deal with: a) the Claimants' application to strike out the Second Defendant's claim against them; b) the issue as to whether the Second Defendant requires the permission of the Court to bring a claim against the Receiver; and c) if so, whether permission should be granted.
On 31 May 2012, the Second Defendant emailed a document called "Application to postpone submission of the second defendant", seeking an extension of time on grounds of ill-health for him to serve evidence as provided for in the directions order to the 4 September 20I directed that the Second Defendant be granted an extension of time in which to serve evidence, to Friday 31 August 2012.
On 25 July 2012 the Second Defendant sent a further email to the Court stating:
"My health status lead me to intensive care and deep checking these recent weeks as a result I have been instructed by my cardiologist to refrain from any activity, to avoid strictly all kinds of stress, travels and any activity impacting my cardiovascular status. As a result I will not be able to attend any court hearing or any meetings with my solicitors in England for the next 3 months.
My doctor foresee a period of recovery of at least 6 months as of beginning of August.
I respectfully ask you to inform the Judge who will be in charge of the case to amend the schedule directed by Mrs Justice Gloster.
I will this coming Friday or Monday next week send you the doctor's certificate"
In consequence of this email the Claimants' solicitors sent a letter dated 26 July 2012 to the Court submitting:
i) that the Second Defendant had provided no medical certificate, and that the Claimants did not expect any credible medical certificate to be provided;
ii) that there must be finality to the litigation; and
iii) that the Second Defendant did not have a claim against the Claimants; that the Claimants, having applied to strike out his claim, should be entitled to come before the Court to have the claim struck out.
I subsequently directed that the matter should remain listed for 18/19 October 2012 and the earlier directions (as previously varied) should stand. I noted that it would be a matter for the judge hearing the application to decide, in light of any medical evidence produced by the Second Defendant, whether the matter should go ahead and if so in what manner.
On 31 July 2012 the Second Defendant provided a purported medical certificate to the Court, the Claimants' and the Receiver's solicitors. However he did not comply with the Directions Order nor did he provide the further evidence which he indicated that he wished to provide by the Court's extended deadline of 31 August 2012.
On 8 October 2012, the Second Defendant e-mailed the Claimants' solicitors stating that he would not attend any hearing nor add any documents because his health issues did not allow him to meet his legal team in London and appear before the Court. On 11 October, the Second Defendant e-mailed the Court, attaching a purported medical certificate and stating that he would not be able to attend any hearing or "give evidence at present moment". The Claimants replied to the Second Defendant and to the Court pointing out that the Second Defendant had a legal team in London, requesting the scheduled hearing dates to remain effective and confirming that the hearing bundles had been served by hand to the Second Defendant's nominated service address in London.
I refused to adjourn the hearing fixed for 18/19 October 2012. The Second Defendant had produced no satisfactory medical evidence to justify a further adjournment; the hearing did not in any event involve the giving of any oral evidence by the Second Defendant; the applications were effectively claims by the Claimants to strike out his claim as against them, and...
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