Nebahat Evyap Isbilen v Selman Turk and Others
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Mann |
| Judgment Date | 14 November 2023 |
| Neutral Citation | [2023] EWHC 2865 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BL-2021-000365 |
[2023] EWHC 2865 (Ch)
Sir Anthony Mann
Case No: BL-2021-000365
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Dan McCourt Fritz KC and Mr Andrew Gurr (instructed by Peters & Peters LLP) for the Claimant
The First Defendant appeared in person
No other Defendant appeared or was represented
Hearing date: 4 th October 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on Tuesday, 14 th November by circulation to the parties or their representatives by e-mail.
Introduction
This is an application for default judgment on part of the claims against 3 defendants, with an alternative application for summary judgment against one of those, together with an application for summary judgment on part of the claim against the first defendant, Mr Turk, who is said to be the perpetrator of wrongs which have led to the claims against most of the other defendants.
The context of these applications for partial judgment is as follows. Mrs Isbilen is a Turkish national whose husband is in prison in Turkey as a political prisoner. She feared she would suffer the same fate and fled Turkey in 2017 and ended up in this country. She is independently wealthy and had assets worth tens of millions of pounds. A lot, if not most, of that money had to be moved from Turkey. She claims not to have known how to go about that and enlisted the help of the defendant Mr Turk, a former banker at Goldman Sachs, in order to assist her. Her case in this litigation is that he was engaged to secure her assets and keep them safe. In due course much of her money was removed to what were regarded as safer jurisdictions. However, he went further than that and disbursed, or procured the disbursement, of very large sums for what is said to be his own benefit, into entities in which he was interested and into which the money has to a large extent disappeared. Those entities are the defendants in this action other than Mr Lewis, who is a business partner of Mr Turk and with whom these applications are not concerned.
Mrs Isbilen claims that she did not know or appreciate what had happened to her money and commenced these proceedings. In their original form they were (in summary) based on breach of fiduciary duty, want of authority and deceit (and, it would seem, in some cases a form of non est factum), so far as Mr Turk is concerned. The other defendants, sued as recipients, are (in outline) sued in restitution and knowing receipt, being infected, so far as necessary, by notice via Mr Turk's interest in or control of them. The full details of the nature of the claims is generally not relevant to this application, but some of it will be relevant when considering the relief sought on this application and it will appear there.
When proceedings were commenced Mrs Isbilen sought and obtained a freezing order against Mr Turk and various of the defendants. The order (and its continuation) contained familiar disclosure provisions, and Mr Turk is said to be in breach of those obligations. A substantial committal application about that is due to be heard in November of this year. Mr McCourt Fritz KC, who appeared for Mrs Isbilen, told me that the applications made to me are tailored so as to leave out of the fray any issues, claims and other matters which might be relevant to the committal application. That means that the applications are more limited than might otherwise have been the case, but it has also contributed to the complexity of the application.
The applications were also limited by another factor. Three defendants have not filed acknowledgments of service or taken other formal steps to defend. Mr Turk himself was fully represented for some time by solicitors and counsel, but for a while now has been acting in person (save for the committal proceedings where he has legal representation). He appeared in person before me. The remaining defendants (the second, fourth and tenth defendants) are represented in the action and have defended it so far — the “Shoosmiths defendants”. Those defendants are not the subject of the present applications and as a result of representations made by their solicitors (Shoosmiths) the present applications also steer clear of claims which relate to those defendants. Nor are the 7 th, 8 th and 9 th defendants who have not acknowledged service.
The present applications have therefore been operating within those self-imposed but understandable restraints.
Procedural matters
Certain procedural matters are potentially significant as background to these applications, and in particular the summary judgment application.
So far as it is necessary to go into details of the claim, that will be done in the sections of this judgment to which they relate, as already observed. I have outlined the main bases of the claim above. The undue influence claim, on which the summary judgment application is solely based, was not an originally pleaded claim. It was introduced by an amendment on the basis that relevant facts had emerged from subsequent disclosures, and Mr Turk opposed the amendment on the footing that it was not maintainable as a matter of law. That contention was dismissed at a contested hearing before Mr Stuart Isaacs QC on 20th December 2021, and he allowed the amendment. The amended pleading containing that allegation (and other amendments which were not opposed) has therefore been in play since then. However, Mr Turk (and the other defendants) have never pleaded to it despite a direction (order dated 13th January 2022) providing for the serving of an Amended Defence by 10th February 2022. Those who were participating had put in Defences to the original claim, but no new amended Defence was put in by Mr Turk to deal with those amendments, including the new undue influence claim.
Nor has Mr Turk sought to put in any other material in response to the undue influence claim. The summary judgment application was made on 4th April 2023 supported by witness statement evidence. Mr Turk has not put in any evidence designed to meet that particular witness statement material. A day or so before the hearing he gave notice that he wished to rely on historic affidavit and witness statement evidence filed for other purposes in these proceedings. Because they were not directed to the issues in the summary judgment application they contain a lot of material which is not germane, but they do contain a limited amount of material which is germane — some general remarks about the abilities of Mrs Isbilen and Mr Turk's relationship with her, and some explanations of some of the disputed transactions. I have read them and taken them into account. He also gave notice that he wished to rely on a witness statement apparently filed in defence to his committal application, but after he had contacted his solicitors about the wisdom of that he withdrew reliance on that evidence. At the invitation of the claimant I did not read that evidence pending Mr Turk deciding whether or not he really wished to rely on it, and as a result of his change of mind I never did read it.
The result was that Mr Turk did not file any evidence specifically related to the summary judgment application made against him, so he had little evidential material available. While that is a concern where a litigant in person is involved, perhaps because the litigant did not understand what was required of him or her, in the present case that concern is less than it might otherwise have been. When the amendments were ordered and the direction as to pleading was made Mr Turk had the assistance of a legal representative (a solicitor who was not on the record but who acted as an advocate for Mr Turk) who is likely to have explained to Mr Turk what was required by way of pleading. When the present application was served on Mr Turk there was no directions order made, but on 5th September 2023 the claimant's solicitors wrote to him and pointed out that he should put in some evidence if he wished to rely on any. Mr McCourt Fritz submitted that, looking at Mr Turk's background and commercial experience, he must have appreciated what it was that he needed to do in order to defend himself and I have borne that in mind in assessing the significance of the material. Nonetheless I still have to look fairly at what material he might be able to deploy, and Mr McCourt Fritz did not suggest otherwise – indeed he fairly accepted that if it contained relevant material it should be taken into account.
The applications for a default judgment — general
Some general remarks are appropriate in this case, applicable to all the applications, before I turn to the specific applications themselves.
CPR 12.2 provides that application may be made for judgment in default where a defendant has not filed an acknowledgment of service or a Defence. The present proceedings are not excluded from that provision by any Practice Direction or otherwise so the procedure is available to Mrs Isbilen in these proceedings.
As will appear, the claimant is applying for default judgment against the relevant defendants (the “default defendants”) on claims some of which have their roots in conduct on the part of Mr Turk and in respect of which they are not seeking judgment against him. If judgment in default were granted against those defendants it would leave the claims against Mr Turk to be decided. In theory it might turn out that Mr Turk is not liable on the claims against him which have founded the further claims against the default defendants. That, however, is not necessarily a bar to obtaining default judgments. The issue came before Flaux J in Otkritie...
To continue reading
Request your trial