Chedington Events Ltd (formerly Axnoller Events Ltd) v Nihal Mohammed Kamal Brake
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 15 November 2022 |
| Neutral Citation | [2022] EWHC 2880 (Ch) |
| Docket Number | Case Nos: E00YE350, F00YE085, BL-2019-BRS-000028, 166 and 167 of 2015, and 21 of 2019 |
| Court | Chancery Division |
In the Possession Proceedings
In the Eviction Proceedings
In the Documents proceedings
In the Insolvency Application
[2022] EWHC 2880 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case Nos: E00YE350, F00YE085, BL-2019-BRS-000028, 166 and 167 of 2015, and 21 of 2019
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)
INSOLVENCY AND COMPANIES LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
William Day (instructed by Stewarts Law LLP) for Chedington Events Ltd and The Chedington Court Estate Ltd
Mrs Nihal Brake for herself and Mr Andrew Brake
Application dealt with on paper
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment will be handed down by the Judge remotely by circulation to the parties or representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 am on Tuesday 15 November 2022.
Introduction
This is my judgment on an application by notice dated 14 October 2022. It is brought by The Chedington Court Estate Limited and Chedington Events Limited (formerly called Axnoller Events Limited) (“the Guy Parties”) against Mrs Nihal Brake and her husband Mr Andrew Brake (“the Brakes”) in four separate sets of legal proceedings between them. The application relates to a single document disclosed by the Brakes in compliance with a worldwide freezing order granted by me on 28 February 2022, but in only two of the four sets of proceedings.
The application is for an order permitting that document (a redacted bank statement addressed to Mrs Brake) to be adduced in evidence in support of a further application also made by the applicants in all four sets of proceedings. That further application is also dated 14 October 2022. It seeks an order cancelling a mental health crisis moratorium entered into by Mrs Brake in late August 2022, pursuant to the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 (“the 2020 Regulations”). That application will be listed for hearing in due course. I am presently considering what directions need to be given in respect of it.
The worldwide freezing order in compliance with which the document was disclosed was made on 28 February 2022 in two sets of proceedings between the parties which have become known as the “Possession Proceedings” and the “Eviction Proceedings”. The undertakings given by the Guy Parties as part of the order included one in the usual form concerning the use to which any information obtained could be put. It read:
“The Guy Parties will not without the permission of the Court use any information obtained as a result of this Order for the purpose of any civil or criminal proceedings, either in England and Wales or in any other jurisdiction, other than in the Possession and the Eviction Proceedings.”
The redacted bank statement which is the subject of the present application shows that a sum of money was paid into Mrs Brake's bank account in September 2022 by a third party (who is named). The entry contains the word “retainer”, on the basis of which the Guy Parties submit that this demonstrates that Mrs Brake is being remunerated for work. Moreover, on the basis of the identity of the third party, they submit that the work concerned is in the financial services industry, in which Mrs Brake was previously employed. They say that this document is therefore relevant to the question which arises in the moratorium cancellation application, of whether Mrs Brake is suffering from a mental disorder of a serious nature for which mental health crisis treatment is required.
Background
I set out some of the background to this complex and interlocking litigation in a recent judgment, given on an application dated 12 September 2022, substantially between the same parties, and also concerned with the same moratorium, though on a quite different point: see my judgment of 4 November 2022, at [2022] EWHC 2797 (Ch), [2]–[11]. The brief summary that follows here is based on that, though omitting unnecessary details, and including some others. The starting point is that the parties have been locked in large-scale litigation ever since the breakdown of the former employment relationship between them in November 2018. I have so far tried four full-scale actions between them. There are also employment proceedings, with which I am not concerned.
I have mentioned the Possession and Eviction Proceedings. In the Possession Proceedings, the Brakes were refused permission to appeal against my decision in principle in favour of the Guy Parties ( [2022] EWHC 365 (Ch)). But there will be a further trial next year, this time of the quantum of damages due to the Guy Parties by way of mesne profits. In relation to Eviction, my decision at trial against the Brakes ( [2022] EWHC 366 (Ch)) was recently reversed by the Court of Appeal ( [2022] EWCA Civ 1302), but the question whether the Brakes are entitled to any (and if so what) remedy is subject to further written submissions, and a decision has yet to be taken by the Court of Appeal.
The other two of the four cases with which I have dealt are known for convenience as the Documents Proceedings. and the Insolvency Proceedings. The Documents Proceedings are effectively at an end, the Court of Appeal ( [2022] EWCA Civ 235) having affirmed my decision at first instance ( [2021] EWHC 671 (Ch)). In relation to the Insolvency Proceedings, I struck out most of the claims at an early stage ( [2020] EWHC 537 (Ch), [2020] EWHC 538 (Ch)), and the only part of it which actually went to trial was thereafter known as the Section 283A Claim, in which I found for the Guy Parties ( [2020] 4 WLR 113). Permission to appeal that decision was refused. The Court of Appeal subsequently ( [2021] BPIR 1) reversed part of my strike out decision, so that I might have to try that part in future. However, the Supreme Court has recently heard an appeal by the Guy Parties against that part of the decision of the Court of Appeal which went against them, so the position on that part of the Insolvency Proceedings remains uncertain.
In the meantime, costs orders, constituting judgment debts, have been made in these proceedings against the Brakes and in favour of the Guy Parties, and given the fluidity of the situation in the various claims, there may conceivably be more in future, and perhaps even damages too. It is important to notice that these debts are (and if ordered in future will be) owed by the Brakes jointly rather than individually. Some of the past costs orders were paid, but a considerable amount owed under them remains unpaid. The Guy Parties have sought to take various steps by way of enforcement.
However, on 6 May 2021 Mr Brake entered into a mental health crisis moratorium under the 2020 Regulations, of the same kind that his wife has recently entered into. (So far as I am aware, he is still in it.) So, all enforcement action had to cease against him at that time: see regulation 7(2), (6)(c). But, as I noted at [21] of my judgment of 17 August 2021, the further effect of regulation 7(7)(n) of the 2020 Regulations is that, without more, the already existing joint judgment debts could not be further enforced against Mrs Brake either.
After Mr Brake entered his moratorium, the Guy Parties made two applications. One was for that moratorium to be discharged; the other was for certain “unless orders”. I heard the applications on 12 August 2021. I dismissed the application to discharge the moratorium, but granted the application for “unless” orders, giving my reasons in a written judgment delivered on 17 August 2021: [2021] EWHC 2308 (Ch), [2021] 1 WLR 6218. That written judgment dealt with the structure and provisions of the 2020 Regulations, and some of what I said there will be relevant for the purposes of the present judgment. One point which I decided on that occasion was that a moratorium under the regulations did not apply to future debts, ie debts incurred after the moratorium came into effect: see at [44], [51], [70].
Accordingly, although the Brakes were now protected against enforcement action in relation to past joint debts (which at the time was all of them), they were exposed in relation to future such debts. It was not long before a further joint debt arose. Following an unsuccessful appeal in one of the cases by the Brakes to the Court of Appeal ( [2022] EWCA Civ 235), that court ordered that the Brakes pay the costs of the Guy Parties, and ordered an interim payment on account of £70,000. That sum was not paid. The Guy Parties applied for and obtained a TPDO, on an interim basis, on 4 April 2022, in relation to a third party pension policy owned by Mr...
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