Nihal Mohammed Kamal Brake v Geoffrey William Guy
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 25 March 2021 |
| Neutral Citation | [2021] EWHC 671 (Ch) |
| Date | 25 March 2021 |
| Docket Number | Case No: BL-2019-BRS-000028 |
| Court | Chancery Division |
[2021] EWHC 671 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: BL-2019-BRS-000028
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
INSOLVENCY AND COMPANIES LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
Daisy Brown (instructed by Porter Dodson LLP) for the Claimants
Andrew Sutcliffe QC and William Day (instructed by Stewarts Law LLP) for the Defendants
Hearing dates: 23–27 November 2020
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.
INTRODUCTION
General
This is my judgment on the trial of part of the claim, by claim form issued on 2 September 2019 for a final injunction and damages in respect of the alleged accessing, retention and deployment by the defendants of emails said to be private and confidential to the claimants and held within three email accounts. It is a trial of part of the claim because the full claim would have taken between 10 and 15 days to try, and so it was decided to try all the issues except the so-called “iniquity” defence advanced by the defendants. It was also decided to try, as a preliminary issue, the question whether the “iniquity defence” was available to the defendants as a matter of law. If the results of this part of the trial and of the preliminary issue show that it is necessary to go on to try the “iniquity defence”, then the time taken by this part of the trial and the preliminary issue will not have been wasted, because these always needed to be decided. But if they show that the trial of the remainder is not necessary, considerable time and money will have been saved.
Originally, the trial was intended to be conducted in person, because it was listed at a time when no “lockdown” was in place because of the COVID 19 pandemic. However, a further lockdown was imposed before the trial date, and I reconsidered the matter. Because of the new lockdown, the significant increase in the number of infections in the Bristol area, and the fact that Dr Guy (the first defendant) was shielding after a recent serious medical operation, I decided that the hearing would instead be held remotely. It was therefore conducted using the Zoom videoconferencing platform (curated by a third party rather than the court, because judicial laptops are not able to run Zoom), between 23 and 26 November 2020, although written closing submissions meant that the trial was not complete until 14 December 2020. As happened at an earlier trial between these parties, the hearing was live-streamed over the web, so ensuring public participation. Unlike that earlier trial, on this occasion the claimants, their lawyers and their witnesses (with one exception) all came to a single location namely, the offices of the claimants' solicitors. This ensured both that the claimants themselves had access to high quality broadband video (which was sadly lacking at the previous trial) and that the claimants' lawyers were better able to liaise with their clients and with the witnesses, and to provide copies of the bundles.
This claim forms a discrete part of wider ranging litigation between the claimants on the one hand and the defendants on the other. There are (or have been) a number of other claims between the parties. This is only the second of them to come to trial. There are others waiting in the wings. The background to the litigation in general, and therefore to this claim in particular, is complex and not easily summarised. Nevertheless it is necessary to paint a broad picture of the context in which this claim arises, before considering the elements of the claim and the evidence in relation to it in detail. I borrow parts of the following summary from summaries in other judgments I have given involving these parties.
Background
In September 2004, the first claimant (then Mrs D'Arcy, but whom I shall call by her current name, Mrs Brake) acquired West Axnoller Farm (“the Farm”), near Beaminster in Dorset, from local landowners, the Vickery family (who continued to have substantial landholdings locally). This property included a substantial dwelling-house known subsequently as Axnoller House. In 2006 Mrs Brake began to operate a holiday letting business at the Farm, subsequently joined in partnership in 2008 by her husband, the second claimant (“Mr Brake”). Just outside the southern boundary of the Farm, on the other side of the private lane leading to the Farm, lies another, smaller residential property known as West Axnoller Cottage (the “cottage”).
In July 2002 a Mr and Mrs White had purchased the cottage from the Vickery family and were living there when Mrs Brake bought the Farm. Mrs Brake borrowed money from bankers Adam & Co in 2006, secured by a first legal charge on the Farm. The financial crisis of 2008 made it impossible to obtain further bank finance to expand the business being carried on at the Farm. The claimants therefore looked for an outside investor.
In February 2010 the claimants entered into a partnership with a limited partnership called Patley Wood Farm LLP (“PWF”), whose principal was Mrs Lorraine Brehme (“Mrs Brehme”). The new partnership (known as “Stay in Style”) was to carry on the business of providing luxurious weekend and other breaks, and hosting events such as weddings. The claimants contributed the Farm as partnership property, although it remained charged to Adam & Co to secure existing borrowings. With funds contributed by Mrs Brehme, on 8 March 2010 the partnership acquired the cottage, the legal title to which was transferred to the claimants and Mrs Brehme jointly, who were registered as proprietors. At first the cottage was used as accommodation for a housekeeper and then for a personal assistant (Simon Windus) and his family. After they left in 2012 it was used (inter alia) for the claimants to stay in when the main house was let.
Differences arose between the claimants on the one hand and PWF on the other, as partners in Stay in Style. In accordance with the partnership agreement, these were referred to arbitration, which ended on 21 June 2013 with an award in favour of PWF, and the dissolution of the partnership. Following a failure to pay orders made against them for costs in the arbitration, the claimants were adjudicated bankrupt on 12 May 2015. Mr Duncan Swift was appointed trustee in bankruptcy with another person, who later retired and was not replaced. The partnership itself subsequently went into administration (in 2016), and then into liquidation (in 2017).
In October 2014 Adam & Co, the bank which had lent money to Mrs Brake against the security of the Farm, appointed receivers under the Law of Property Act 1925. After marketing the property, the LPA receivers sold it in July 2015 to a newly incorporated company, Sarafina Properties Limited (“Sarafina”), said to be a corporate vehicle for the Hon Saffron Foster (“Mrs Foster”), a daughter of Lord Vestey, as well as a friend of Mrs Brake.
In February 2017 Mrs Foster sold the company to The Chedington Court Estate Ltd (“Chedington”, the second defendant), and its name was changed to Axnoller Events Limited (“AEL”). It is the third defendant in this claim. Chedington is an investment vehicle for Dr Geoffrey Guy (“Dr Guy”, the first defendant). Mr and Mrs Brake were employed to continue to run the wedding and rental accommodation business as before. Relations between the parties broke down, and on 8 November 2018 notice was given of the termination of their employment. This led to proceedings in the employment tribunal against Chedington and others by each of the claimants (“the Employment Claims”), and proceedings in the High Court by AEL against the applicants to recover possession of the Farm (“the Possession Claim”).
Following this, in January 2019, Mr Swift as trustee in bankruptcy entered into a transaction with the liquidators of the partnership in relation to the cottage, to acquire the liquidators' rights in it. Chedington entered into back to back transactions with Mr Swift in order to acquire those rights. The Brakes allege that Chedington and Mr Swift acted collusively, implementing “unlawful arrangements to create the false appearance that Chedington had acquired title to the cottage”. Chedington subsequently took possession of the cottage, the Brakes say unlawfully. They therefore commenced eviction proceedings against Chedington (“the Eviction Claim”). So the position on the ground currently is that the claimants are in occupation of the house, but seek possession of the cottage, whereas the second defendant is in occupation of the cottage, and the third defendant seeks possession of the house. Trials of these two possession claims are currently listed for April and May 2021.
In addition, on 12 February 2019 the Brakes commenced insolvency proceedings (the “Liquidation Application” and the “Bankruptcy Application”) against both the liquidators of the partnership and their trustee in bankruptcy. The first purpose of these insolvency proceedings was to unwind the disputed transactions. The second purpose was (as against the trustee) to establish that the Brakes' pre-existing interests in the cottage and the adjacent parcels had revested in them and Mrs Brake respectively on 12 May 2018 under the Insolvency Act 1986, section 283A, on the basis that they were the Brakes' sole or principal...
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