Mr. Cooke & Mrs Cooke v Venulum Property Investments Ltd (First Defendant) Mr. Cadman (Second Defendant) Venulum Manor Works Ltd (Third Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Morgan |
| Judgment Date | 14 November 2013 |
| Neutral Citation | [2013] EWHC 4288 (Ch) |
| Docket Number | Claim No. 2BM30069 |
| Court | Chancery Division |
| Date | 14 November 2013 |
[2013] EWHC 4288 (Ch)
Mr. Justice Morgan
Claim No. 2BM30069
IN THE HIGH COURT OF JUSTICE
BIRMINGHAM DISTRICT REGISTRY
The Priory Courts
33 Bull Street
Birmingham
Counsel for the Claimants: Mr. Blackett-Ord
Counsel for the Third Defendant: Mr. Christopher Stoner QC
This is an application by the claimants, Mr and Mrs Cooke, to continue the freezing order that was made ex parte by His Honour Judge Barker QC on 24 th October 2013. Since late 2010, Mr and Mrs Cooke have been involved in county court proceedings concerning a disputed right of way. Those proceedings, for most of their life, have involved two defendants, the first being Venulum Property Investments Limited and the second being a Mr Cadman, who is, if I put it neutrally, the moving force behind the first defendant. The first defendant is a Cayman Islands company and Mr Cadman lives overseas, possibly in the Cayman Islands.
The first defendant was a relevant defendant because it was the freehold owner and the registered proprietor at the Land Registry of the land which Mr and Mrs Cooke said was subject to the claimed rights of way. Mr Cadman was said to be a relevant defendant because Mr and Mrs Cooke's claim involved an allegation that he had acted inappropriately and, in particular, had harassed Mr and Mrs Cooke on an occasion or occasions in the past. The amended particulars of claim in the county court proceedings effectively sought declaratory relief against the first defendant, together with an injunction requiring the defendant to do work to restore the area over which the right of way was claimed, and also an injunction restraining the second defendant, Mr Cadman, from harassing the claimants. There was also a monetary claim for damages for harassment limited to £15,000. The prayer does not make this quite so clear but I am told that that claim was always intended to be a claim against the second defendant only.
The defendants, Venulum Property Investments Limited and Mr Cadman, have served a defence and counterclaim. In the counterclaim the first defendant claimed declaratory relief on certain bases and also an order that the register of the claimants' title and the first defendant's title be altered to bring the register into line with what the court declared the underlying legal position to be. That action in the county court had gone on for some time and it was due to come to trial, and did indeed come to trial, in the Birmingham County Court on 4 th November 2013. Before 4 th November 2013, it came to the notice of the claimants' solicitors that the first defendant's registered titled had been transferred, in around September 2013, to a company with a similar name, Venulum Manor Works Limited, a company registered in the United Kingdom. No one from the defendants' side had told the claimants' solicitors that this had happened, and indeed on enquiry it emerged that Venulum Manor Works Limited had not told the solicitors who were acting for the first defendant and the second defendant. An attempt was made by the claimants' solicitors to find out what was happening and, shortly after that attempt began, the claimants' solicitors made the application which led to the ex parte freezing order to which I have referred.
The application was in the High Court, effectively in support of the county court proceedings. The principal relief sought in the High Court was a freezing order, which had to be sought in the High Court. The application notice sought an order that Venulum Manor Works Limited be joined as a third defendant. I have not seen the order which did that — and perhaps it ought to have been an order in the county court rather than the High Court, but nothing turns upon that. The application notice then went on to seek a general freezing order restricted to England and Wales and it identified the amount to be frozen in the sum of £150,000. That matter came before His Honour Judge Barker, as I have said.
In support of the application was an affidavit of Mr Port, the solicitor acting for Mr and Mrs Cooke. He described the history of the county court litigation and he described his discovery of the transfer of title. He referred to the contact he had made with the solicitor acting for the first and second defendants. He commented upon the significance of the transfer to the company, that I will hereafter call the third defendant. He then referred to the fact that the claimants had incurred costs and would continue to incur costs in the county court litigation. He suggested in paragraph 26 of his affidavit that the total of the claimants' costs would exceed £100,000. He did not distinguish between costs which had been incurred prior to the time when the third defendant became a party to the proceedings and the costs after the time that the third defendant became a party to the proceedings.
The claimants, through their solicitor and, I think, counsel, proffered a draft of a freezing order. The freezing order sought was a general one in relation to all of the assets of the third defendant in England and Wales. The draft referred to the amount frozen being £200,000. The draft did not have in it the exceptions to the order which are in the standard form of freezing order. In particular, the draft did not have a provision that the order was not to prohibit the respondent from dealing with or disposing of its assets in the ordinary and proper course of business, nor was there a provision entitling the respondent to make use of its assets to pay for the defence of the claim against it. The costs were to be reserved to the judge who heard the matter on a return date.
Judge Barker made the order essentially as sought, although he reduced the amount frozen to £110,000. It was a general freezing order of the third defendant's assets in England and Wales, although the prohibition, as is common, identified specific assets which included the property registered at the Land Registry. Judge Barker directed that there be a further hearing on 8 th November 2013 or at the conclusion of the trial in the County Court, whichever should first occur. Jumping ahead a little, the trial in the county court ran for the best part of four days; I understand it finished on 7 th November. The judge hearing that matter reserved his judgment so the trial in one sense has not yet ended. That means that the return date under the order was to be 8 th November 2013.
On today's hearing, which has become the effective return date, Mr Blackett-Ord has appeared on behalf of the claimants and Mr Stoner QC has appeared on behalf of the third defendant. Mr Blackett-Ord submits to me that I have power to continue this freezing order and that all the usual requirements for the grant of a freezing order are made out; that I should therefore make a freezing order. He accepts that I ought to modify that which was judged appropriate on the ex parte application. He suggests that I can reduce the figure of £110,000 to reflect the fact that there has been a subsequent arrangement under which the second defendant has made a payment in relation to costs, and I think also an agreement has been made about the disposal of the claim for harassment against the second defendant. Mr Blackett-Ord also accepts...
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