Amanda Louise Staveley v Victor Restis
| Jurisdiction | England & Wales |
| Judge | Schaffer |
| Judgment Date | 25 March 2024 |
| Neutral Citation | [2024] EWHC 670 (Ch) |
| Year | 2024 |
| Court | Chancery Division |
| Docket Number | Case No: BR-2023-000456 |
[2024] EWHC 670 (Ch)
DEPUTY ICC JUDGE Schaffer
Case No: BR-2023-000456
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANIES LIST (ChD)
IN THE MATTER OF AMANDA LOUISE STAVELEY
AND IN THE MATTER OF THE INSOLVENCY ACT 1986
Royal Courts of Justice
Rolls Building
Fetter Lane
London EC4A 1NL
Ted Loveday (instructed by Forsters LLP) for the Applicant
Raquel Agnello KC (instructed by Francis Wilks & Jones) for the Respondent
Hearing dates: 28 February and 19 March 2024
INTRODUCTION
The adjourned application before me today seeks to set aside a Statutory Demand dated 26 May 2023 (the Demand) served on Amanda Louise Staveley (Ms Staveley) by Victor Restis (Mr Restis).
The Demand is for payment of the sum of £36,841,287.12 derived from an original loan of £10m which, after payments and accruing interest up to 4 April 2023 and costs, stood at £10,103,503.32 with further interest claimed from 4 April 2023 to 26 May 2023 of £26,747,783.80.
Appearing on behalf of Ms Staveley was Ted Loveday of Counsel and for Mr Restis, Raquel Agnello KC also of Counsel. Both have filed detailed skeleton arguments with an agreed bundle of authorities, for which I am grateful.
There are five witness statements before the court, three on behalf of Ms Staveley, two by her personally and one by Andrew James Head, a partner in Forsters, her solicitors. There are two witness statements for Mr Restis, one by him and one by his lawyer, John loannis Neocleous (“Mr Neocleous”). The statements adduce numerous documents so that in all, within the prepared bundle, I have had over 720 pages of evidence before me, all of which I have considered to which some I was taken during the course of submissions. For that reason, the hearing originally estimated to last one day was stretched to two days to deal with pre-reading, submissions and late submissions on one point raised in argument which necessitated a short further adjournment until this morning to enable me to consider all the views and hand down judgment which I will now do.
BACKGROUND FACTS
The history of this matter is fairly complicated, not only in considering the Demand but also the dealings between Ms Staveley, Mr Restis, Mr Neocleous and a number of other entities associated with Ms Staveley. Extrapolating, as best I can, from a myriad of facts, the following can be discerned as relevant here:
5.1 The principal debt was incurred on 9 September 2008 when Mr Restis, through First Financial Corporation, made a loan of £10 million to Ms Staveley's companies, PCP Capital Partners LLP and/or PCP Partners LLC and/ or, as alleged, to Ms Staveley personally. No loan documentation was prepared or signed.
5.2 By 2014 the total sum of £6,552,696.22 of the initial sum had been repaid to Mr Restis, leaving a principal balance due of £3,477,303.78.
5.3 By a Settlement Deed and Release dated 5 May 2016 (“the 2016 Deed”), Ms Staveley, PCP Capital Partners LLP and PCP Capital Partners LLC acknowledged the sum due and PCP Capital Partners LLP agreed to repay it on 30 April 2017. I note that any dispute on the 2016 Deed was to be resolved by arbitration under the Rules of the London Court of International Arbitration Rules. (‘LCIA’)
5.4 On 30 April 2017 default under the 2016 Deed arose.
5.5 On 23 May 2017 Mr Neocleous, by email, advised PCP Capital Partners LLP, through Ms Staveley, that Mr Restis would give it a further 30–60 days to pay so as to enable Ms Staveley to complete negotiations with Barclays Bank PLC (“Barclays”) against whom a substantial claim had been made (“the Barclays litigation”).
5.6 On 24 May 2017 Ms Staveley acknowledged the email thanking Mr Noecleous and Mr Restis “for being so understanding”.
5.7 On 28 July 2017 Mr Neocleous sought to arrange a meeting with Ms Staveley which took place on the 31 July 2017.
5.8 Subsequently Mr Restis, Ms Staveley, PCP Capital Partners LLP and PCP Capital Partners LLC signed an addendum to the 2016 Deed dated 8 August 2017 within which it was agreed that the amount outstanding with interest was £5,476,000, including legal fees and expenses of £400,000 to be paid on 31 October 2017.
5.9 On 14 September 2017 Mr Neocleous arranged to collect the 8 August 2017 addendum. It is unclear when it was actually signed.
5.10 On 23 October 2017 Mr Restis, in principle, agreed to give a witness statement in support of Ms Staveley in the Barclays litigation.
5.11 On 12 November 2017 the same four parties, referred to at paragraph 5.3 above, signed a second addendum to the 2016 Deed where they agreed that the sum outstanding with interest was £6,476,000 including legal fees and expenses of £976,000 to be paid on 1 February 2018.
5.12 On 28 November 2017 Mr Restis provided to Ms Staveley a witness statement in support of her claim against Barclays within which he stated that the £10m loan was to Ms Staveley personally (page 234 of the application bundle). A draft of that statement was sent to Ms Staveley's solicitors before it was signed by him. It is noted that this particular part of the witness statement was not challenged at any time by Ms Staveley before the Barclays litigation was determined.
5.13 On 15 August 2018 Mr Neocleous, on behalf of Mr Restis, agreed to a further extension of time to pay, requested by Ms Staveley, on condition that an addendum, at that time sent by him to her, was signed by 20 August 2018.
5.14 On 20 August 2018 those same parties signed that third addendum to the 2016 Deed which agreed that the sum outstanding with interest was £7,476,000 including legal fees and expenses of £1,476,000 to be paid on 20 October 2018.
5.15 On 28 November 2018 the same parties signed a fourth addendum to the 2016 Deed which agreed that the sum outstanding with interest was £8,176,000, including legal fees and expenses of £1,676,000 to be paid on 1 February 2019.
5.16 On 13 January 2019 Mr Restis agreed to Ms Staveley's proposal that she would arrange a third party loan for settlement of Mr Restis' claim (page 282 of the Application bundle).
5.17 On 1 st February 2019, consequent upon Ms Staveley's proposal, she received a draft Final Release and Settlement Agreement (“the Final Release”) and agreed to review it (page 302 of the application bundle) The Final Release was subsequently signed, under which it was agreed that Ms Staveley and/or PCP Capital Partners LLP and/or PCP Capital Partners LLC would secure a loan facility in favour of Mr Restis which would be equivalent to the outstanding sum, the repayment to be made conditional on a payment being made to PCP Capital Partners LLP and Others by Barclays in the Barclays litigation. It is noted that under Clause 1e of this agreement, in default of the loan facility being procured, it was stated that Ms Staveley, PCP Capital Partners LLP and Capital Partners LLC would “remain liable” for the outstanding sum due. No mention is made of the 2016 Deed in this document but it contained an entire agreement clause (“Entire Agreement Clause”) to which I will later refer.
5.18 On 4 February 2019 the Final Release was dated and sent to Mr Neocleous (page 319 of the application bundle).
5.19 On 24 April 2019 Mr Neocleous, Ms Staveley, PCP Capital Partners LLP and PCP Capital Partners LLC signed what was termed a Facilitation Deed under which Ms Staveley, PCP Capital Partners LLP and PCP Capital Partners LLC acknowledged that the outstanding sum was now £8,700,000 including legal services and expenses of the amount of £1,900,000 which they agreed to pay by 1 st day of November 2019. Although there is reference to an Acknowledgement of the Debt at Schedule 4 to this Deed, none is shown on that Schedule and it was confirmed to me during the course of closing submissions that it was never attached.
5.20 On 21 January 2020 Mr Neocleous advised Ms Staveley by Whatsapp message that he would prepare a new agreement, to be sent that day to her for her to sign, where the date for payment was to be extended to August-September 2020 (page 346 of the application bundle).
5.21 On 6 February 2020 Mr Restis, Ms Staveley, PCP Capital Partners LLP and PCP Capital Partners LLC accordingly signed an amendment to the Facilitation Deed which agreed that the outstanding sum was £9,650,000 including legal services and expenses of £2,050,000. As part of this amendment it was agreed that upon its execution, Ms Staveley and/or PCP Capital Partners LLP and/or PCP Capital Partners LLC would make a down payment of £150,000 towards the primary liability, the balance to be paid by 31 st day of August 2020.
5.22 On 6 March 2020 Mr Neocleous pressed Ms Staveley by Whatsapp message, for the £l50k payment and Ms Staveley confirmed it would be made, advising him that he was “very special” (page 351 of application bundle). That payment was duly made.
5.23 On 31 December 2020 Mr Neocleous agreed to wait on payment of the balance and to support Ms Staveley's request for an extra 3–6 months to pay (page 365 of the application bundle).
5.24 All four parties to the February 2020 agreement subsequently signed a second amendment to the Facilitation Deed, which had been sent to Ms Staveley on 7 January 2021, and which agreed that the outstanding sum was now £10,093,503.42 (including legal services and expenses of £2,143,860.13) to be paid by 1 st April 2021. The agreement contained an Entire Agreement clause and an Integration clause, to which I will later return in this judgment. This document was reviewed by Ms Staveley within the following 14 days, signed and collected from her office on 22 January 2021 (page 487 of the application bundle).
5.25 No payment having been made by the due date, on 23 March 2021 Mr Restis requested either a bond or early settlement and refused to agree any further extension (page 365 of the application bundle).
5.26 On 6 April...
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