Hamza Sabir v Imperial Offices (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Edwin Johnson |
| Judgment Date | 26 January 2022 |
| Neutral Citation | [2022] EWHC 552 (Ch) |
| Docket Number | Case No: CR-2021-000610 |
| Court | Chancery Division |
[2022] EWHC 552 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANIES LIST (ChD)
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr Justice Edwin Johnson
Case No: CR-2021-000610
Mr Paul Strelitz (instructed by Masons Law LLP) appeared on behalf of the Applicant
Mr Ali Reza Sinai (instructed by Moriarty Law Limited) appeared on behalf of the Second Respondent
Hearing dates: 17 th December 2021 and 24 th January 2022
APPROVED JUDGMENT
Introduction
This is the hearing of a contempt application made by the petitioner in this action, Hamza Sabir (“the Applicant”), against the second respondent (“the Respondent”) in this action, Taheer Sardar. This is my judgment on the question of whether the contempt of court alleged by the Applicant has been proved to the required standard of proof. The application is made by a contempt application notice dated 19 August 2021 (“the Application”). On the hearing of the Application the Applicant has been represented by Mr Paul Strelitz, counsel, and the Respondent has been represented by Mr Ali Reza Sinai, also counsel. I am most grateful to both counsel for their assistance in the hearing of the Application.
The evidence in the Application comprised a first affidavit of the Applicant dated 19 August 2021. In response, there was an affidavit of the Respondent dated 6 December 2021. There was also a second affidavit of the Applicant dated 9 December 2021, which included a response to the Respondent's affidavit, which arrived in the course of preparation of the Applicant's second affidavit. There was also a substantial bundle of documents prepared for the hearing, although in the event only a small part of that bundle turned out to be relevant to what I have to decide.
Both the Applicant and Respondent gave oral evidence and were cross-examined on their affidavit evidence. The hearing was originally listed for one day on 17 December 2021, but the hearing of the evidence occupied all of the originally listed day. As a result, the hearing had to be adjourned and resumed on 24 January 2022, when it was intended that I should hear the oral submissions of the parties on the Application. The gap between the two dates of the hearing did have the advantage of allowing me further time to absorb and consider the oral and written evidence and the skeleton arguments of counsel before hearing the oral closing submissions.
The second day of the hearing was, however, initially occupied by an application made by the Respondent to introduce further evidence by way of a supplemental bundle of documents. The documents were produced by the Respondent's solicitors only shortly before the resumed hearing, when they were sent to the Applicant's solicitors under cover of a letter dated 13 January 2022. There was no formal application made to the court for the admission of these documents. Mr Sinai made the application on an informal basis at the resumed hearing. Mr Strelitz opposed the application. After hearing the argument, I gave permission for the Respondent to introduce the supplemental bundle of documents for the reasons which I set out in a short judgment which I delivered at the resumed hearing. The upshot of this was that the start of oral closing submissions was somewhat delayed.
Burden and the Standard of Proof
Turning to the substance of the Application, I commence by reminding myself that the burden is upon the Applicant to prove the alleged acts of contempt. The standard of proof to be applied in the Application is the criminal standard of proof so that I must be satisfied beyond reasonable doubt that the Applicant has proved the elements of the alleged contempt which he is required to prove. In order to avoid repeating myself, where I make findings of fact in this judgment I have done so on the basis that the relevant facts have been proved to the criminal standard of proof. This is so whether I spell this out or not in relation to a finding of fact.
Relevant Background
The background to the Application can be summarised briefly. I derive this background from the affidavit evidence before me, from the large quantity of documents contained in the hearing bundle in the Application (in which expression I include the supplemental bundle of documents produced by the Respondent) and from the oral evidence.
The first respondent in this action, Imperial Offices UK Limited (“the Company”), is a private limited company which provides office space on short-term commercial lets. The Company appears to have been successful and operates across three sites in London, known as Community House, Heron House and St George's House. The latter (St George's House) is also sometimes referred to as the Romford site or the Romford premises. The Company also operated previously from a site known as the Watford site.
The Company was incorporated on 31 October 2008 and has a share capital of 100 ordinary shares at £1 each. The Applicant has been a director of the Company since its incorporation. The Respondent was appointed as the director of the Company on or around 10 February 2010. The Applicant and the Respondent each hold 50 per cent of the shares in the Company. The significance of that is that neither the Applicant nor the Respondent has outright control of the Company.
Unfortunately, a dispute has arisen between the Applicant and the Respondent concerning the Company's affairs. In very brief summary, the Applicant accuses the Respondent of excessive borrowing from the company at a level which has damaged the Company and is economically unsustainable; of improperly charging expenses to the Company; of failing to protect the interests and assets of the Company; of establishing a separate business which competes or conflicts with the business of the Company; and of improperly converting the property of the Company to the Respondent's own use. These complaints were raised by the Applicant against the Respondent in the course of 2020 and appear to have resulted in a substantial level of confrontation between the parties, caused, so the Applicant says, by the Respondent's aggressive and confrontational reaction to the Applicant's complaint.
A formal letter of claim was sent by the Applicant's solicitors to the Respondent's solicitors on 21 December 2020. Following receipt of the letter of complaint, so the Applicant says, the Respondent took various steps at Companies House to try to remove the Applicant from control of the Company. This included the filing at Companies House by the Respondent of a notice of termination of the Applicant's appointment as a director of the Company. The Applicant was subsequently reinstated as a director of the Company but the dispute between the parties had the consequence that the Company's business could not properly be conducted with its two directors and 50 per cent shareholders at loggerheads.
On 30 March 2021 the Applicant commenced proceedings against the Respondent in the form of a petition under section 994 of the Companies Act 2006 (“the Proceedings”). Details of the Applicant's case against the Respondent are set out in the points of claim in support of the petition. There are detailed points of defence from the Respondent and points of response from the Applicant.
The Agnello Order
Following service of the Proceedings, the Respondent again sought to remove the Applicant as a director of the Company by filing with Companies House a further notice of termination of the Applicant's appointment as a director on 20 April 2021. This was combined with the letter sent by the Respondent to the Applicant on 23 April 2021 by which the Respondent, as a director of the company, purported to give the Applicant notice of his dismissal from his employment by the Company and purported to require the Applicant to remove himself and his private possessions from the Company's premises and return all the company records and documents along with door keys and security gate fobs. At around this time the ability of the Applicant to obtain online access to the Company's principal business account with Barclays Bank was removed.
The letter of 23 April 2021 contained allegations that drug parcels had been received at the Company's premises, which were said to have been the subject of a detailed internal investigation by the Company in which the Applicant was said to be...
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