Mr Riyadh Nasser Alokaili v Mr Baljinder Chohan (a.k.a. Bally Chohan)
| Jurisdiction | England & Wales |
| Judge | Keyser |
| Judgment Date | 16 May 2022 |
| Neutral Citation | [2022] EWHC 1126 (Ch) |
| Docket Number | Case No: BL-2019-001328 |
| Court | Chancery Division |
[2022] EWHC 1126 (Ch)
HIS HONOUR JUDGE Keyser QC
sitting as a Judge of the High Court
Case No: BL-2019-001328
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mark Simeon Jones (instructed by Amanah Solicitors) for the Claimants
Simon Hunter (instructed by Devonshires) for the Second Defendant
Hearing dates: 11 May 2022
Approved Judgment
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.
HIS HONOUR JUDGE Keyser QC
This judgment was handed down by email to the parties' representatives, the National Archive and the Judicial Office. The date and time of hand-down are 16 May 2022 at 10.30 a.m.
JUDGE Keyser QC:
Introduction
This judgment contains the full reasons for a committal order that I made on 11 May 2022. Summary reasons were stated at the end of the hearing on that date.
The order was made on the claimants' application, by notice filed on 24 February 2022 pursuant to CPR r. 81.3(1), for committal of the second defendant, Mr Bhupinder Chohan (“Mr Chohan”), for breach of his disclosure obligations under orders made in these proceedings on 22 September 2021, 9 November 2021 and 7 February 2022. Those orders, each of which dispensed with the requirement of personal service, were all duly served in accordance with their terms.
The application was supported by an affirmation made on behalf of the claimants on 23 February 2022 by their solicitor, Mr Wakil Ahmed, of Amanah Solicitors.
The application notice and the supporting evidence were served on Mr Chohan on 25 February 2022. The hearing notice for the hearing of the application was served on Mr Chohan on 21 March 2022.
At shortly after 4.30 p.m. on 10 May 2022, the day before the hearing, Mr Chohan served a witness statement of that date, which admitted the breaches of the orders, expressed apologies for those breaches, and exhibited documents in purported—though admittedly partial—compliance with his obligations under the orders. Mr Chohan attended at the hearing and gave evidence on oath.
I am grateful to Mr Jones and Mr Hunter, counsel respectively for the claimants and for Mr Chohan, for their assistance during the hearing.
Background
I take the background mainly from the affirmation of Mr Ahmed and the documents exhibited to it. It is relevant because it provides context for the breaches of court orders complained of in the application.
These proceedings were commenced by the issue of a claim form on 18 July 2019. The first and second claimants, who are nationals of Saudi Arabia, resident in Riyadh, and are respectively son and father, claimed to recover moneys that they had advanced for the purchase of “off-plan” properties in England from the third and fourth defendants, which are companies registered in the British Virgin Islands. The moneys, totalling something over £500,000 from each claimant, had been paid into bank accounts held by the fifth and sixth defendants, which are companies registered in England and Wales. The claim form averred that it had transpired that the third and fourth defendants did not have title to the properties and that they had neither conveyed the properties nor returned the moneys. The second defendant, Mr Chohan, is the sole director and shareholder of the fifth and sixth defendants. He and his brother, the first defendant, were sued “as the directing mind and will exercising management and control” of the third, fourth, fifth and sixth defendants and as having procured breaches of contract and trust by those companies and conspired with the third and fourth defendants to effect those breaches. In short, the claimants alleged that they had been a victim of a scam perpetrated by the first and second defendants through the various companies.
In October 2019 the claimants made an application for default judgment. That application was originally listed to be heard on 2 December 2019. On 4 November 2019 Deputy Master Nurse made an order (“the Preservation Order”) against Gordons Solicitors Limited (“Gordons”) and Mr Mark Gilbert, a director of that company and consultant with its practice, who had acted for the defendants in respect of other conveyancing transactions, requiring that until determination of the application for default judgment, Gordons and Mr Gilbert (referred to as “the Respondents”) should preserve
“(a) any transfer deeds, leases and exchanged sale and purchase contracts relating to any transactions completed between 1 January 2013 and 4 November 2019, involving funds received from the Fifth and Sixth Defendants (“the Transactions”);
(b) any written communications between the Respondents on the one hand and any of the Defendants and/or the Defendants' agents, officers, servants, authorised signatories and/or employees on the other, relating to the Transactions; and
(c) any attendance notes relating to the Transactions.”
The application for default judgment was eventually heard on 6 February 2020 by Deputy Master Arkush, who gave a number of judgments for the respective claimants against the various defendants. The total sum of the judgments entered against Mr Chohan personally was £1,645,707.33, excluding accrued interest. The total sums of the judgments entered against the fifth and sixth defendants were respectively £721,801.23 and £923,906.10, excluding accrued interest. The judgments were not formally entered by consent, but the defendants' solicitors had signified by email their agreement to the entry of the judgments.
On 30 March 2020 the first claimant and the second claimant as judgment creditors issued a total of four applications on form N316A for the fifth and sixth defendants to attend court by their officer, Mr Chohan, to provide information about their means. Each of the applications annexed as an “Annexure”, in identical terms, a list of the documents of which production was sought. Paragraph 3 of the Annexure read:
“For the purpose of enforcement of this judgment, the court is invited to order the judgment debtor to produce:
a) complete copies of transfer deeds, leases and exchanged sale and purchase contracts relating to any transactions completed between 1 January 2013 and 4 November 2019, involving funds received from the judgment creditor (‘the Transactions’)
b) complete copies of solicitors [sic] client ledger account(s) involving funds received from the judgment creditor, which the judgment debtor remitted to Gordons between 1 January 2013 and 4 November 2019; and
c) if the said funds were not applied to the Transactions, the judgment debtor is to confirm:
i the purpose for which such funds were remitted to Gordons and/or to whom such funds were subsequently transferred by Gordons; and
ii how the aforesaid funds were used and/or the assets/property the said funds were applied to, and if applicable, to identify the relevant assets/property acquired with such funds.”
On 6 May 2020 the claimants as judgment creditors issued a fifth application, this time on form N316, for Mr Chohan as judgment debtor to attend court to provide information about his means.
I shall refer to the five applications as “the Debtor Questioning Applications”.
Five orders of Deputy Master Arkush, one on each application, were sealed on 13 May 2020, requiring Mr Chohan to attend before the Master on 22 July 2020 to provide information about the means of the judgment debtors to whom the respective applications applied. Each order contained a penal notice addressed to Mr Chohan. Each order specified classes of documents that Mr Chohan was required to produce. In the orders relating to the four corporate judgment debtors these included “those documents itemised in … the ‘Annexure’ to the application (N316A)”. In all five orders the documents that were required to be produced included “those documents itemised in ‘Documents in your control’ in the notes attached hereto”. The relevant notes required the judgment debtor to produce documents confirming the necessary financial information, such as bank statements, pay slips and the like. They continued:
“If you have a business or you are a partner in a business, or the Judgment Debtor is a company or corporation, then include the above documents so far as they relate to the business and
— Bills or invoices owed to the Judgment Debtor
— two years' balance sheets and profit and loss accounts
— current management accounts”.
However, before the time came for Mr Chohan to attend before the Master and produce the documents, the parties reached terms for the payment of the judgment debts by instalments. Those terms were contained in a Settlement Agreement that was annexed as a Schedule to the consent order made by Deputy Master Nurse on 6 July 2020. Paragraphs 3 and 4 of that order provided:
“3. The Debtor Questioning Applications are hereby stayed, the Claimants having permission on not less than fourteen days' prior written notice to apply to lift the stay and restore the Debtor Questioning Applications for further hearing(s) without the need to issue any fresh applications, such stay to be lifted only if the Defendants breach the payment terms in the Settlement Agreement.
4. The Defendants, as relevant, shall instruct Gordons Solicitors Limited … to retain and preserve for any future...
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Mr Riyadh Nasser Alokaili v Mr Baljinder Chohan (a.k.a. Bally Chohan)
...16 May 2022 the judge handed down a reserved judgment in which he gave his reasons for finding the Second Defendant in contempt: see [2022] EWHC 1126 (Ch). He recorded in [10] that following an application for default judgment, the Claimants obtained the following judgment against the Defe......