David Tyler Moss v Brian Martin
| Jurisdiction | England & Wales |
| Judge | Philip Marshall |
| Judgment Date | 04 November 2022 |
| Neutral Citation | [2022] EWHC 2788 (Comm) |
| Docket Number | Claim No: LM-2022-000197 |
| Court | Queen's Bench Division (Commercial Court) |
| Year | 2022 |
[2022] EWHC 2788 (Comm)
Philip Marshall KC (sitting as a Deputy Judge of the High Court)
Claim No: LM-2022-000197
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT (KBD)
Royal Courts of Justice
Rolls Building, London, EC4A 1NL
Roger Laville (instructed by Kelly Owen Limited) for the Claimants
James McWilliams (instructed by Birketts LLP) on behalf of the First and Second Defendants
Hearing date: 26 October 2022
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 has been handed down by the judge remotely by circulation to the parties' representatives by email and release to Bailii. The date for hand-down is deemed to be 4 November 2022.
Philip Marshall KC:
Introduction
This is an application for summary judgment in proceedings to enforce two foreign judgments.
The two judgments in question are as follows:
2.1 Firstly, a judgment of the United States District Court for the Northern District of Texas, Dallas Division in proceedings brought by the First and Second Claimants (Mr. Moss and Mr. Keating respectively) against a Mr. Marko Princip and the First Defendant, Mr. Martin, dated 15 April 2016 (“the 2016 Judgment”). This contained an award of damages for breach of fiduciary duty, fraud, tortious interference and conspiracy against Mr. Princip and Mr. Martin quantified in the sum of US$2,100,000 to each of Mr Moss and Mr. Keating for which each were jointly and severally liable. The judgment contained further awards of exemplary damages and a declaration, but these aspects are not sought to be enforced here.
2.2 Secondly, a judgment of the District Court of the 68 th Judicial District of Dallas County, Texas in proceedings brought by Mr. Moss, and the Third Claimant (“Fidelissimus”), as assignee of the rights of Mr Keating, against Mr. Martin, the Second Defendant (Ms. Bone) and Carolyn Martin (Mr. Martin's mother), dated 12 April 2022 (“the 2022 Judgment”). This ordered the payment of the sum of US$4,563,984.04 to each of Mr. Moss and Fidelissimus by Mr. Martin in respect of claims for fraudulent transfers, civil conspiracy, aiding and abetting, conversion, common law fraud and statutory fraud in a real estate transaction. There was also an order for the payment of US$2,808,662.87 to each of Mr. Moss and Fidelissmus by Ms. Bone in respect of the same causes of action. The 2022 Judgment contained other relief in the form of awards of exemplary damages and various injunctions, decrees and declarations but, as in the case of the 2016 Judgment, these aspects are not sought to be enforced in this jurisdiction.
The issues raised by the Defendants are relatively confined and have become more so in light of a late witness statement served by Mr. Martin on the evening prior to the hearing. In essence Mr. Martin contends that the 2016 Judgment should not be enforced because the foreign court is said to have given judgment contrary to the rules of natural justice and recognition of that judgment would violate Mr. Martin's rights under Article 6 of the European Convention on Human Rights as implemented by the Human Rights Act 1998. He further contends that the 2022 Judgment is parasitic upon the 2016 Judgment and, if the latter is not to be enforced, the former should not be enforced either. As regards Ms. Bone, she says that the 2022 Judgment should not be enforced against her since the foreign court lacked international jurisdiction and she should not be treated as having submitted to its jurisdiction having regard to the provisions of section 33 of the Civil Jurisdiction and Judgments Act 1982 (“CJJA”).
Mr. Moss and Mr. Keating are citizens of the United States and were investors in a business set up by Mr. Princip and involving Mr. Martin which operated a YouTube channel called “VideoGames”. They claimed in the proceedings leading to the 2016 Judgment that they entered into various agreements with Mr. Princip and Mr. Martin whereby they were to receive a share of the revenues of this YouTube channel in return for their investment. They contended that Mr. Princip and Mr. Martin failed to honour the terms of these agreements in the operations of the channel. Such claims were accepted by the jury whose verdict led to the relief granted in the 2016 Judgment.
Fidelissimus is a company formed in the state of Oregon in the United States and is managed by Mr. Keating. It was assigned various assets, including Mr. Keating's rights under the 2016 Judgment, on 20 November 2019.
Mr. Martin says he is a former freelance manager and agent of various YouTube channels. He was and remains a citizen of the United States.
Ms. Bone says she is a video animator and content creator for various YouTube Channels. She is a citizen of the United Kingdom.
Mr. Martin and Ms. Bone are husband and wife, having married in June 2019. Ms Bone says she emigrated to Texas in May 2019 to live with Mr Martin. They say that at first they rented an apartment between June 2019 and February 2020. Then between February 2020 and August 2020 they moved to a property located at 12452 Cajun Drive, Frisco, Texas (“Cajun Drive”). They say that this property was purchased with money provided by Mr. Martin's mother but then registered in the name of Ms. Bone by way of a gift to her. This contention, however, has been specifically addressed by the Texan court. Following the 2022 Judgment the court provided a document entitled “Findings of Fact and Conclusions of Law” in which it is recorded that:
“45. Brian D. Martin provided access to $339,984.98 ($3400 earnest money plus $336,584.98 purchase money) to his mother, Carolyn M. Martin. Defendant Carolyn M. Martin then initiated two wire transfers for Holly Bone to purchase 12452 Cajun Drive, Frisco TX 75035.
46. Holly Bone fraudulently purchased this property as a “straw man” for the benefit of Brian D. Martin”.
Ms. Bone says that in August 2020 she decided that she wished to return home to the United Kingdom as she had not enjoyed living in Texas. She says she placed Cajun Drive on the market for sale and left Texas for the United Kingdom on 25 August 2020.
In his first witness statement in these proceedings, dated 23 June 2022, Mr. Martin asserted that he left the United States to join his wife in the United Kingdom on 14 September 2020. However, on the afternoon before the hearing I was informed by Mr. Laville, counsel for the Claimants, that although a flight confirmation email that Mr. Martin had exhibited purported to show that he had left Dallas airport on 14 September 2020, it was evident on the electronic version that this date had been added subsequently as a text field by some form of PDF editing software. Once the text field was deleted the flight confirmation showed that Mr. Martin left the airport on 20 September 2020. The significance of the change is that the proceedings leading to the 2020 Judgment commenced on 15 September 2020 and, if he did not leave until after this date, he would have been present in the United States when that legal action began, a relevant matter for the international jurisdiction of the Texan court.
Mr Martin filed a fourth witness statement within a few hours thereafter. In this further statement he accepts that he did not leave Dallas until 16 September 2020 and has produced various copy receipts for taxis and copy airline confirmations to support this. He states that he first booked a flight which was due to leave on 20 September 2020 but that this was later amended to 16 September 2020. He says that his earlier statement giving his departure date as 14 September 2020 was an error of recollection. I am very troubled by that explanation given that Mr. Martin seems to have had the exhibits to his fourth witness statement confirming the true date readily available to him and has not explained the discrepancies in the electronic version of the exhibit to his first statement. Nevertheless I am not in a position at this stage to reach any firm conclusion on the matter.
The 2016 Judgment
The proceedings leading to the 2016 Judgment commenced in June 2014 in the District Court, 191st Judicial District Court of Dallas County, Texas but were subsequently removed to the United States District Court for the Northern District of Texas on 28 August 2014 at the defendants' request (the “Original Proceedings”).
By the Original Proceedings, Mr. Moss and Mr. Keating brought claims for breach of fiduciary duty, fraud, tortious interference and conspiracy against Mr. Princip and Mr. Martin in respect of the management of the YouTube channel, Videogames.
The trial in the Original Proceedings took place before a jury between 28 March and 1 April 2016. The jury found that a partnership existed between Messrs. Moss, Keating, Princip and Martin with the Claimants each owning 30% of the partnership and Mr. Princip and Mr. Martin each owning 20%. The jury reached a verdict in favour of Mr Moss and Mr Keating in respect of their claims for compensation and, as a result, the 2016 Judgment was entered in their favour.
Mr. Princip and Mr. Martin appealed the 2016 Judgment to the United States Court of Appeals for the 5th Circuit. The grounds of appeal first addressed the jurisdiction of the federal as opposed to the state court trying the case. It was said that the case ought not to have been heard in the federal court on the grounds that there was insufficient diversity in the location of the various parties to warrant this. This seems to have been based on a further argument that the partnership contended for by...
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