Judith Susan Portrait v Khadijeh Minai
| Jurisdiction | England & Wales |
| Judge | Greenwood |
| Judgment Date | 28 June 2023 |
| Neutral Citation | [2023] EWHC 1605 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BR-2022-000068 |
[2023] EWHC 1605 (Ch)
ICCJ Greenwood
Case No: BR-2022-000068
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANIES LIST (CHD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Ms Madeline Dixon (instructed by Dentons & UK Middle East LLP) for the Petitioners
Mr Duncan Macpherson (instructed by Axiom DWFM) for the Debtor
Hearing dates: 3 March and 19 April 2023
This judgment was handed down remotely at 11.30am on 28 June 2023 by circulation to the parties or their representatives by e-mail.
ICC Judge
Introduction
This is the trial of a bankruptcy petition (“ the Petition”) presented on 2 March 2022 against Miss Khadijeh Minai by Ms Judith Portrait and Mr Joseph Burns (“ the Petitioners”) acting in their capacity as the trustees of the Gatsby Charitable Foundation of The Peak, 5 Wilton Road, London SW1P 1AP (“ the Foundation”). At issue is the Court's jurisdiction to make the order sought.
The Petition is based on an undisputed debt of £325,752.60 due to the Petitioners pursuant to the terms of an Order made by HHJ Monty QC in the County Court at Central London on 22 July 2021. That Order was made following the trial, on 19 July 2021, of a claim made by the Petitioners against Miss Minai for the return of a deposit paid on the terms of an “ Exclusivity Agreement” made on 19 December 2017 in respect of the potential sale by Miss Minai of a property, of which she was, and remains, the registered owner, at Unit A, 4–12 Queen Anne's Gate, London SW1H 9AA (“ 12 Queens Anne's Gate”). Essentially, the Foundation had withdrawn from the potential purchase because it transpired (as the judge held) that there was “ no prospect of planning consent” being given by the City of Westminster to a change in the property's use from residential to commercial (the Foundation's only interest being in the acquisition of office premises). Miss Minai was not present or represented at the trial, but has not appealed or challenged its outcome, albeit apparently reserving her right to do so. In any event, the judge found that her failure to attend was deliberate.
On 2 December 2021, the Petitioners served on Miss Minai their statutory demand dated 4 November 2021 (although not personally, but by virtue of the steps explained in the Certificate made by Mr Peter Brown, a process server, on 9 December 2021).
The Petition having been presented on 2 March 2022 and served on 18 April 2022 (by alternative means, in accordance with the Order of Deputy ICC Judge Curl QC made on 12 April 2022) a consent order was made on 26 May 2022 by ICC Judge Prentis which amongst other things, recited that Miss Minai reserved her rights in respect of the Court's jurisdiction, and directed her to file and serve evidence by 30 June 2022 in respect of her “ domicile”. A further order was made by the same judge at a hearing on 2 August 2022, directing further evidence in respect of the Court's jurisdiction from both the Petitioners and Miss Minai, and directing that the Petition be listed thereafter for the determination of that issue. In addition, Judge Prentis ordered that Miss Minai (but no other witness) was to attend for cross-examination, failing which her evidence was not to be admitted without the Court's permission. No formal application for a variation of that order in respect of cross-examination was subsequently sought by Miss Minai. It was pursuant to the Order of Judge Prentis that the trial before me took place on 3 March 2023, continued on 19 April 2023.
In support of their case, the Petitioners, represented by Ms Madeline Dixon of counsel, relied on:
i) two witness statements made by Mr Amandeep Dhillon on 29 July 2022 and 6 September 2022; Mr Dhillon is a solicitor at Dentons UK Middle East LLP (“ Dentons”), the Petitioners' solicitors;
ii) a witness statement made on 6 September 2022 by Ms Gemma Hunter-Barnes, a Senior Associate at Dentons; and,
iii) a witness statement made on 6 September 2022 by Mr Burns, one of the Petitioners.
Miss Minai, represented by Mr Duncan Macpherson of counsel, relied on her own witness statements, made on 30 June 2022, 22 November 2022 and 24 February 2023 (her first, second and third statements) and on 18 April 2023 (her fifth statement).
At the trial, oral evidence was given by both Miss Minai and Mr Burns, both of whom were cross-examined, albeit that no prior order for Mr Burns' attendance and cross-examination had been made.
In addition, I should add (since apart from anything his name and alleged conduct was raised by Miss Minai several times in cross-examination referred to below) that the Petitioners also served in support of their case a witness statement made by a Mr Peter Fisher on 6 September 2022. Mr Fisher is a lawyer who has in the past been involved in giving assistance to Miss Minai. On the day before the trial, an argument was raised, on behalf of Miss Minai, that Mr Fisher's evidence was and/or contained materials that were, amongst other things, confidential and/or privileged, and which ought not to be relied upon. In the event, the Petitioners withdrew that evidence, and I rejected (for reasons set out elsewhere, in an ex tempore judgment given on 3 March 2023) Miss Minai's application for an adjournment in order to allow her to seek further relief, including the possibility of injunctive relief preventing Dentons and/or Ms Dixon from continuing to represent the Petitioners.
As to the Court's jurisdiction, by virtue of s.265 of the Insolvency Act 1986:
“ (1) A bankruptcy petition may be presented to the court under section 264(1)(a) only if–
(a) the centre of the debtor's main interests is in England and Wales, or
(ab) the centre of the debtor's main interests is in a member State (other than Denmark) and the debtor has an establishment in England and Wales, or
(b) … the test in subsection (2) is met.
(2) The test is that–
(a) the debtor is domiciled in England and Wales, or
(b) at any time in the period of three years ending with the day on which the petition is presented, the debtor–
(i) has been ordinarily resident, or has had a place of residence, in England and Wales, or
(ii) has carried on business in England and Wales.”
If one or other of these conditions is not met, the Court does not have jurisdiction to make a bankruptcy order, and the Petition must be dismissed.
In the present case, the Petition states:
i) that Miss Minai's centre of main interests (her “ COMI”) is in “ the United Kingdom” (although this was treated by the parties as an allegation that it was in England and Wales); and,
ii) that in the period between 3 March 2019 and 2 March 2022, Miss Minai had a “ place of residence” in England, at 12 Queen Anne's Gate and/or at Apartment 2, 7 Cambridge Gate, London NW1 4JX (“ Cambridge Gate”). Subsequently, the Petitioners sought to expand their case to include a third alleged place of residence for some part of the same period, at Flat 11, 43 Wimpole Street, London W1G 8AE (“ 43 Wimpole Street”); and,
iii) that Miss Minai “ has connections” with various English companies, namely, Paribas Commodity Limited, Niko Shipping Limited, Tara Property Management Limited, 4–12 Queen Anne's Gate Freehold Limited and Olewatt Limited. That allegation (subsequently expanded by reference to a number of other English companies) is said to be relevant both to the location of Miss Minai's COMI, and to the character of her connection with 12 Queen Anne's Gate and 43 Wimpole Street, in particular because the companies' filed records held at Companies House show her “ correspondence address” and/or “ service address” to be or have been at one or other of those places, and her “ Country of residence” to be or have been the UK or England.
Those allegations, which it is for the Petitioners to prove, are denied.
In short, Miss Minai's case is that although she is an Iranian national, her COMI is (and in any event, more importantly, that it was, as at 2 March 2022, the date of the Petition's presentation) in Ukraine, where she is domiciled, where she has had residency since 2003, and where she has (or had) business interests on a very significant scale, employing over 6,000 people and trading in commodities such as grain, sunflower seed and steel, so that she became “ famous there”, known, so she said, as “ the Iron Lady” and “ the Grain Lady”. Her case is that although she bought 12 Queen Anne's Gate for £7.18 million in 2002 as an “ investment” and still owns it (despite efforts to sell it since about 2014, including of course to the Foundation) and that although she owned Cambridge Gate – again as an “ investment” — until 2021 (when it was sold by a mortgagee which had taken possession in 2020) and that although she rented 43 Wimpole Street between about 1998/1999 and the end of 2014, none of those properties were her “ places of residence” during the relevant three year period before the Petition was presented. Her evidence was that she came to England for medical treatment in October 2021, intending to return to her home in Kyiv in January 2022, but has been prevented from doing so because of the conflict in Ukraine. Essentially, her case is that her presence in England is not the result of a choice, freely taken, but is “ forced” and temporary, substantially involuntary, a result of circumstances beyond her control. In cross-examination, of her possible return to Ukraine, she said, “ If they allow me, I go tonight!”, but that if she were to return, “ I will be kidnapped within a minute!”. In any event, it was not in dispute — in fact, it was accepted, unsurprisingly — that her immediate return, in the...
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