John Forster Emmott v Michael Wilson & Partners Ltd
| Jurisdiction | England & Wales |
| Judge | Pelling |
| Judgment Date | 21 November 2019 |
| Neutral Citation | [2019] EWHC 3782 (Comm) |
| Court | High Court |
| Date | 21 November 2019 |
| Docket Number | Case No: CL-2013-000625; CL-2014-000916; CL-2010-000804 |
[2019] EWHC 3782 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGALNAD AND WALES
COMMERCIAL COURT (QBD)
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
HIS HONOUR JUDGE Mark Pelling QC
(Sitting as a Judge of the High Court)
Case No: CL-2013-000625; CL-2014-000916; CL-2010-000804
Mr P Shepherd QC appeared on behalf of the Claimant
Mr D Holland QC appeared on behalf of the Defendant
(As Approved)
Happily, a measure of agreement has been reached in this case concerning the future conduct of the main application, which is the application for the appointment of a receiver by way of equitable execution over the assets of Michael Wilson & Partners Limited. Originally the application was formulated on the basis that it was to bite against all assets wherever in the world they might be located, but as the hearing has developed, focus has been confined to three assets, being a fund currently held in New Zealand, the sums credited to a series of bank accounts held with a private bank in Australia and a holding of shares in a third party company. The overarching issue that surfaced in the course of the submissions was that there is said to be a fixed and floating charge in favour of an entity called KHI, which bites over all of the assets of Michael Wilson & Partners Limited. Thus, one of the submissions which was made on behalf of Michael Wilson & Partners was that a receiving order ought not to be made because the inevitable result of doing that would be to stimulate a further round of litigation, in multiple different jurisdictions potentially, as KHI seek to enforce or rely upon their charge as a means of preventing the receivers taking control of even the three categories of asset I identified earlier in this judgment.
In those circumstances, a way forward has been identified for dealing, hopefully finally, with the issue which lies now at the heart of pretty well everything that is in dispute between the parties, which is the veracity or otherwise of the KHI charge. That issue has been the subject of a number of judgments in which the issue has been identified without any final findings having been made. One of the problems about dealing with the issue is that it is necessary for KHI to participate if the issue is to be resolved fully and finally. A measure of agreement has been reached as to how this might be achieved, essentially as follows. It has been agreed that there would be the joinder to the present application of KHI. It would be invited to apply to be joined into these proceedings as a party. The claimant in these proceedings, Mr Emmott, will give his consent to KHI being joined as a party to these proceedings, which will be recorded in the order giving effect to the series of judgments I have given over the last two-and-a-half days, and in those circumstances there will be an adjournment of the receivership application over until 10 January 2020, at which point either KHI will have applied to be joined as a party to the proceedings, in which case I anticipate giving directions for the final disposal of the application by evidence and possibly some disclosure followed by a hearing in order to determine finally what is to happen. If KHI do not choose to participate then, again, directions will have to be given for the final disposal of the application, although, as it seems to me, there is the possibility on the 10 th that if KHI have not applied to be joined then I should simply proceed to dispose of the application for appointment of a receiver there and then.
The issue that remains to be dealt with concerns an application for disclosure. My understanding (although I do not think I have been taken to the order which deals with it) is that Knowles J directed that the application for further information by Mr Emmott against Michael Wilson & Partners Limited should be determined today as part of the group of applications which have been listed before me. The application is in essence a very simple one. A freezing order was made in these proceedings in order to provide support for an attempt to enforce an arbitration award which had been made a judgment of the English court. The freezing order was made on 5 December 2014, and within the order there was a provision dealing with the provision of information. It is said by the claimant that the information was not provided until quite late in the day, that there was, I think, an application made for committal on the basis that the information should have been but had not been provided and, in the end, some voluminous affidavits were provided focusing principally, I think, on receivables in circumstances where Michael Wilson & Partners Limited practises as a firm of solicitors and legal advisors in Kazakhstan.
Mr Shepherd QC, appearing on behalf of Mr Emmott, applies for an order in effect for updates of the information that is currently available concerning the assets of Michael Wilson & Partners Limited. It was submitted on behalf of Michael Wilson & Partners Limited first that it was premature until the issue concerning the scope of the charge had been resolved and, secondly, if and to the extent information was to be directed then it should be made subject to an undertaking which precluded Mr Emmott or his advisors from contacting any of the bodies identified in any of the information provided.
So far as the first of these points is concerned, in my judgment that submission is mistaken. The question of whether or not the charge is effective over all the assets of MWP is logically different from what those assets consist of. In my judgment, the claimant is fully entitled to know what the current assets of Michael Wilson & Partners Limited consist of. It is then in that context that the issue concerning the charge can be resolved. Once the issue of the charge has been resolved, the question of whether or not a receiver should be appointed and, if so, over what assets, will then have to be resolved. It is inconvenient, to say the least, that that issue should be postponed for a further number of weeks or months while the relevant information is then provided in order to enable that question to be decided. It is plainly right that that information should be available so that whoever resolves the question concerning the scope of the charge as part and parcel of deciding whether or not a receiver should be appointed will be able to identify all the assets which are available so as to focus any order that is made to the orders which can most cost effectively and proportionately be garnered by the receiver if appointed.
In those circumstances, it seems to me that, in principle, a direction is required to provide the information. I make it clear that I do not expect or require a narrative affidavit running to multiple tens or perhaps even multiple hundreds of pages. What is required is (and is only) a schedule which sets out each and every asset excluding receivables that is currently owned, legally or beneficially, by Michael Wilson & Partners Limited, verified by an affidavit to which the schedule is exhibited and, in relation to sums held in bank accounts, identifying the amount of the balance in favour of Michael Wilson & Partners in the bank accounts concerned. With that exercise completed, everyone...
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