Omni Trustees Ltd ((in Liquidation)) and Another v Tristram Michael Norriss
| Jurisdiction | England & Wales |
| Judge | Judge Hodge |
| Judgment Date | 14 September 2015 |
| Neutral Citation | [2015] EWHC 2697 (Ch) |
| Docket Number | 2254 of 2015 |
| Court | Chancery Division |
| Date | 14 September 2015 |
[2015] EWHC 2697 (Ch)
His Honour Judge Hodge, QC
(Sitting as a Judge of the High Court)
2254 of 2015
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre,
1 Bridge Street West,
Manchester,
M60 9DJ.
Miss Lucy Wilson-Barnes (instructed by Wragge Lawrence Graham & Co LLP, 2 Snowhill, Birmingham, B4 6WR) appeared for the Applicant.
The Respondent did not appear and was not represented.
Monday, 14 th September 2015.
Judge Hodge QC:
This is my extemporary judgment in the matter of Omni Trustees Ltd, No 2254 of 2015. This is the adjourned hearing of an application under Section 236 of the Insolvency Act 1986. The Respondent to this application is a Hong Kong resident, Mr Tristram Michael Norriss. The Applicant is the Official Receiver in his capacity as the liquidator of Omni Trustees Ltd. On 27 th May 2015 the Secretary of State presented a Petition to wind up Omni Trustees Ltd on public interest grounds. On 3 rd June 2015 the Official Receiver was appointed as provisional liquidator of Omni Trustees Ltd; and on 22 nd July 2015 a winding-up order was made in relation to the company. Both of those orders were made by His Honour Judge Pelling QC (sitting as a Judge of the Chancery Division). On 12 th June 2015 the Official Receiver, acting in his capacity at that time of provisional liquidator of the company, had issued the application which is presently before the court. At that time there were two Respondents to the application, Mr Mark Carter and Mr Tristram Michael Norriss. I am not presently concerned with the position of Mr Carter. He is present in court here today as a litigant in person, but he has no interest in the relief which is being sought against Mr Norriss otherwise than as an interested observer of these proceedings. He has made no substantive submissions to me. Mr Norriss does not appear before me today. Mr Carter had thought that he might travel from Hong Kong to be present in court today but that does not appear to be the case.
The Official Receiver is represented by Miss Lucy Wilson-Barnes (of counsel), who has produced a detailed written skeleton argument dated 10 th September 2015. The evidence formally in support of the application is contained within the second report of Mr Kenneth David Beasley, an Official Receiver with the Public Interest Unit of the Insolvency Service, based at Manchester. His second report is dated 12 th June 2015, and various documents are exhibited to it as Ex. KDB/2. In addition, there is a substantial volume of (largely email) exchanges that have taken place involving the Official Receiver, his solicitors (who are Wragge Lawrence Graham), and both Mr Carter and Mr Norriss. Those have been placed before me, and I have been taken to various of them. There are now a little over 180 pages of such email exchanges, commencing on 12 th June 2015, the date of Mr Beasley's second report, and continuing up until early this morning (14 th September).
The background to the present application can be shortly stated: The company, Omni Trustees Ltd, is the Trustee of an Occupational Pension Scheme known as the Henley Retirement Benefit Scheme. On or about 25 th July 2014, at a time when the assets of the Henley Retirement Benefit Scheme held by the company amounted to some £8.6m sterling, a little over £3.7m sterling was transferred from the company to the Timoran Small Self-Administered Scheme located in Hong Kong. The transfer was effected by a firm of solicitors in Leeds, Metis Law LLP, acting on behalf of the company, apparently on the instructions of a Mr Karl Dunlop. The transferee, Timoran SSAS, apparently acted by Mr Tristram Michael Norriss. On the evidence, he would appear to be the principal, and possibly the sole, trustee of Timoran SSAS. The object of the present application is to find out what has happened to the sum of just over £3.7m that was so transferred to the Timoran SSAS.
The application first came before Judge Pelling on 17 th June 2015. At that time there were questions as to the sufficiency of the service of the application upon Mr Norriss. Mr Norriss had written a letter to the court which is to be found at pp. 36–37 of divider 8 of the application bundle. The letter was placed before Judge Pelling on 17 th June. The letter from Mr Norriss, which I am told was in similar terms to a letter from Mr Carter, described the application by the Official Receiver as "oppressive" and "unreasonable". The Official Receiver was said to have failed properly to serve Mr Norriss with the application and to have failed to give him proper or even reasonable – considering his residence in Hong Kong – notice of the hearing. Particulars of the failure to serve and to provide proper notice were given. Furthermore, the letter asserted that, in any event, Mr Norriss did not accept that the English court had jurisdiction to grant an order with such extra-territorial effect as the Official Receiver was then seeking. I should mention that at that stage what was sought was not simply the production of a witness statement, with supporting documents, addressing various identified matters but, in addition, that Mr Norriss, who had held himself out as being a trustee of the Timoran SSAS, should attend to be examined on oath at a place and time to be fixed by the court. The lack of jurisdiction to make an extra-territorial order was addressed in Mr Norriss's letter in these terms:
'In relation to jurisdiction I have been advised that the English court does not have the power to summon people from abroad to appear before it and that Section 236 Insolvency Act 1986 is not an exception to this rule and so I do not accept that the English court has the jurisdiction to grant the order sought. Even if it did have jurisdiction, which I do not accept, the terms of the order sought by your client appear to go well beyond the scope of what is seemingly permitted by Section 236.'
Judge Pelling adjourned the hearing of the application and gave directions for service by email on Mr Norriss.
The application came back before Judge Pelling on 21 st August 2015 by which time, as I have mentioned, the Judge had already made an order winding-up Omni Trustees Ltd so that the Official Receiver was now acting in his capacity as liquidator rather than provisional liquidator.
On 21 st August Judge Pelling had placed before him a further letter from Mr Norriss dated 20 th August 2015, which is to be found at pp. 97C and D of the application bundle. That letter made certain proposals to return assets from the Timoran SSAS to the Official Receiver in his capacity as liquidator of Omni Trustees Ltd. It is unnecessary for me to refer further to the detailed terms of that letter. Having read that letter, Judge Pelling adjourned the application and relisted it to take place today, 14 th September 2015, before me, with a time estimate of half a day. Paragraph 2 of Judge Pelling's order gave permission to Mr Norriss to file and serve, by four o'clock on 4 th September 2015, any evidence upon which he relied, in default of which he should not be permitted to rely on any evidence without the court's permission. No such evidence has been filed. There is therefore no evidence from Mr Norriss before the court; and, as I have mentioned, he does not appear before me today. The costs were reserved, and there was liberty to apply generally.
Miss Wilson-Barnes has placed before me today an email received apparently just after nine o'clock this morning from Mr Norriss, apparently sent from his iPhone, stating that he was still negotiating to effect a transfer of funds from Hong Kong to the Official Receiver of some £3.6m sterling which he had apparently promised would be transferred last Friday, 11 th September, but which has not yet been forthcoming. The email shortly states that Mr Norriss has been negotiating the transfer and all is good if the Official Receiver could confirm that the figure was in full and final settlement to Omni. As they were said to be so close, Mr Norriss requested that the court should allow him until Thursday 15 th October to conclude the transaction. That is the present position.
Miss Wilson-Barnes has made it quite clear that the Official Receiver is not seeking the examination of Mr Norriss, either in this jurisdiction or even in Hong Kong. What the Official Receiver is seeking is an order that Mr Norriss shall, within seven days, produce to the Official Receiver's solicitors a witness statement, with supporting documents, detailing and exhibiting various matters (as identified in para. 3 of the Application Notice). This is an application made by the Official Receiver in his capacity as liquidator of the company. It is said that Mr Norriss is a person who is capable of giving information concerning the business, dealings, affairs and property of the company of which the Official Receiver is now liquidator. Mr Norriss therefore falls within the scope of Section 236(2) Insolvency Act 1986. I am satisfied on the evidence that that is indeed the case. Mr Carter, who is also the Respondent to a similar application by the Official Receiver, but without the added complication that Mr Carter is not permanently resident in Hong Kong, has made it clear, in response to requests for information and documents from the Official Receiver's solicitors, that there are many matters upon which he is dependent for instructions, and for further information and documents, upon Mr Tristram Norriss....
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