Paul John Asplin v DAS UK Holdings Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 03 October 2023 |
| Neutral Citation | [2023] EWHC 2321 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2018-LON-001435 |
and
[2023] EWHC 2321 (Admin)
Mr Justice Fordham
Case No: AC-2018-LON-001435
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Gary Pons (instructed by Bindmans) for Mr Asplin
Martin Evans KC (instructed by Edmonds Marshall McMahon) for DAS
Ashfords Solicitors (written submissions only) for Mr Hosier
Hearing date: 19.9.23
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
On 9 July 2018 the Applicant (Mr Asplin) was convicted at Southwark Crown Court, on a private prosecution brought by the Respondent (DAS), of conspiracy to defraud and false accounting in a period from 2000 to 2014. On 13 July 2018 he was sentenced to serve 7 years imprisonment. For temporal reasons (see Blackstone's Criminal Practice 2023 §E19.2), the associated confiscation proceedings – in their criminal and civil settings – have remained governed by Part 6 of the Criminal Justice Act 1988 rather than its successor the Proceeds of Crime Act 2002. Confiscation under the 1988 Act involves a division of labour between the Crown Court and the High Court, as with pre-2002 Act drugs confiscation under the Drug Trafficking Offences Act 1986 (see In Re Norris [2001] UKHL 34 [2001] 1 WLR 1388 at §15) and its successor the Drug Trafficking Act 1994. In this case, a civil restraint order was made in the High Court pursuant to s.77 of the 1988 Act on 12 July 2018. In this judgment I am going to call that “the Restraint Order”. The case has come before me in the form of an application made by Mr Asplin, issued on 15 September 2022, to vary the Restraint Order pursuant to s.77(6)(a) and (7).
There are two properties in Bristol, “in relation to” which the variation is being sought (using the language of s.77(6)(a)). They are known as Elberton Court (which I am going to call “the Family Home”) and Primrose Drive (which I am calling “the Rented House”). The Restraint Order prohibits Mr Asplin and his wife Mrs Karen Asplin from dealing – absent variation or discharge of the Order – with any assets in which Mr Asplin has an interest. The Restraint Order spells out that it does not prevent any financial institution or other charge holder from enforcing or taking any other steps to enforce an existing charge it has in respect of a property, provided 21 days written notice is given to Mr Asplin, DAS and any other affected party. On 25 July 2019 the Crown Court imposed a confiscation order requiring Mr Asplin to pay £5,286,289 (subsequently reduced by the Court of Appeal to £4,828,728). I will call that “the Confiscation Order”. At the same time the Crown Court made a back-to-back Compensation Order (see s.72(7)) for payment out to DAS – as the victim of the crimes – of compensation of £5,285,300 (subsequently reduced by the Court of Appeal to £3,500,000).
In making the Confiscation Order, in the course of identifying the ‘available amount’ (s.71(6)(b)), the Crown Court assessed Mr Asplin as having a 50% beneficial interest in the Family Home and a 72% beneficial interest in the Rented House. Mrs Asplin was assessed by the Crown Court as having the remaining 50% (Family Home) and 28% (Rented House) beneficial interests. Mrs Asplin holds the sole legal title to two of the three land titles comprising the Family Home and holds the sole legal title to the Rented House. The third land title comprising the Family Home is held by Mr and Mrs Asplin. There are two lenders. It is common ground that Barclays Bank has a registered charge dating back to 2006 over the Family Home in conjunction with lending and accruing interest on that lending, in respect of which a mortgage term expired in 2021 and the redemption figure as at 2 July 2023 was £897,487.62. A September 2023 valuation gives the Family Home a market value of £1,950,000. The monthly interest accruing in favour of Barclays Bank is described as being around £4,500 per month. As to the Rented House, it is common ground that the Interested Party (Mr Hosier) has a charge in conjunction with lending described in a 7 December 2015 Deed entered into by Mrs Asplin. Mr Hosier's charge was registered on 30 October 2019. The loan is said to be £200,000 and interest free. It has been variously described, always relating to legal costs of Mr Asplin or of Mr and Mrs Asplin, including one description of being lending associated with Mr Asplin's legal costs of his defence. The market value of the Rented House is informally put at around £375,000.
The parties to these proceedings are Mr Asplin and DAS, together with Mr Hosier whose application to join as an interested party was granted by consent on 30 January 2023. Barclays Bank and Mrs Asplin are aware of these proceedings but neither has applied to be joined as a party.
What is Being Permitted
It is common ground between the parties that steps should now be taken, through variation of the Restraint Order, with a view to seeking to effect the realisation of the realisable property held by Mr Asplin in the Family Home and the Rented House, with the consequence that monies are made available towards satisfying the Confiscation Order. What is being suggested is this. Mrs Asplin would buy-out Mr Asplin's interest in the Family Home, with the consequence that proceeds will become available for the Confiscation Order of what remains of the value of Mr Asplin's 50% beneficial interest, after payment to Barclays Bank of the current redemption figure. Mrs Asplin would sell the Rented House by marketing it through an estate agent, again with the consequence that proceeds will become available for the Confiscation Order.
It is important to emphasise that the variation is in nature permissive. The Court is not ordering that there be a buy-out of the Family Home. The Court is not ordering that there be a sale of the Rented House. The Court is ordering that these things can proceed, and lifting the prohibitions in the Restraint Order so that they can proceed, but with appropriate controls and conditions. The Restraint Order is prohibitory. What is mandatory within the variation is that – if there is a Family Home buy-out or Rented House sale – the controls and conditions within the variation, and the unvaried terms of the Restraint Order, must be complied with.
Two Previously Controversial Issues
After unsuccessful attempts to resolve contested issues by agreement, as directed by Sir Ross Cranston on 18 May 2023, the application was restored for hearing. That was in order to resolve two issues of controversy between the parties.
The first controversial issue was whether the variation of the Restraint Order should permit the Family Home buy-out by Mrs Asplin to be at a price which had been adjusted downwards (discounted) to reflect notional sale costs. The word “notional” is apt, because the Family Home would not be being marketed by estate agents taking their cut, because this is a private sale. Some of the solicitors' conveyancing costs were also “notional”. The notional sale costs were – I have understood – being put at around £30,000. That means the downward adjustment would make a difference of around £15,000 to the buy-out proceeds available for the Confiscation Order. My pre-reading included cases like R v Cramer (1992) 13 Cr App R (S) 390 (describing inevitable costs of the sale) and R v Lowther [2020] EWCA Crim 1387 [2020] 4 WLR 152at §§53–59 (discussing market value in the context of “benefit”). I would have asked Counsel for their observations about R v Lemmon (1992) 13 Cr App R (S) 66 at §§69–70 (referring to the “reality” of the position).
The second controversial issue was whether the variation of the Restraint Order should permit the sale of the Rented House only if and after Mrs Asplin had first repaid from other sources the debt to Mr Hosier, Mrs Asplin having been described as the borrower in the December 2015 Deed. If that were correct, a full 72% of the net sale proceeds of a sale of the Rented House would have become available for the Confiscation Order. DAS had made clear that Mr Hosier's charge was not being impugned. My pre-reading included R v Ryder [2020] EWCA Crim 1110 at §§22–23, 50–51.
On the day of the hearing, the parties succeeded in resolving these contested issues. No adjudicative decision was now being required of the Court in relation to them. Mr Asplin and DAS had agreed terms of a variation, which Mr Hosier did not oppose, whose features would include the following. First, the buy-out figure in respect of the Family Home would involve no discount for notional sale costs. Secondly, it would not be a precondition before any sale of the Rented House that Mrs Asplin would first have repaid the loan to Mr Hosier. Thirdly, it would be a condition of the sale of the Rented House that Mrs Asplin would disavow (and so surrender) her previously assessed 28% beneficial interest. That agreed position was an overall package. The variation would allow Mrs Asplin to sell the Rented House by marketing it through an estate agent, with the consequence that proceeds will become available for the Confiscation Order, subject to two points. The first is that there would be repayment (put at £200,000) of Mr Hosier's loan. The second is that Mrs Asplin's 28% beneficial interest would be disavowed to form part of Mr Asplin's beneficial interest. Thus the proceeds available for the Confiscation Order would constitute 100% of the beneficial interest, after the payment to Mr Hosier.
The Contested Issue: The Precondition
The agreement at which the parties have arrived leaves a...
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