R (Upon the application of Lehram Capital Investments Ltd) v Southwark Crown Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 21 December 2023 |
| Neutral Citation | [2023] EWHC 3190 (Admin) |
| Year | 2023 |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3791/2021 |
and
[2023] EWHC 3190 (Admin)
Mr Justice Julian Knowles
Case No: CO/3791/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Christopher Jacobs (instructed by the Bar Public Access Service) for the Claimant
Jonathan Ashley-Norman KC (instructed by Edmonds Marshall McMahon) for the Interested Party
The Defendant did not appear and was not represented
Hearing dates: 26 April 2023
Approved Judgment
This judgment was handed down remotely at 14:00 on 21 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is an unusual case with a deceptively complex factual background. The Claimant, Lehram Capital Investments Limited, brings an application for judicial review of the dismissal by the Defendant, Southwark Crown Court, on 17 August 2021 of its appeal against conviction and sentence in the City of London Magistrates' Court in March and October 2020. Broadly speaking, the grounds of challenge raise issues about the fairness of the appeal proceedings, including the Defendant's refusal to adjourn the appeal.
In the usual way, the Defendant Crown Court has not taken an part active in these proceedings.
The Interested Party, Cyrith Holdings Limited, was the private prosecutor in the magistrates' court and the Crown Court, where the Claimant was the defendant and then the appellant.
For clarity, in this judgment I will refer to ‘the Claimant’ and ‘the Interested Party.’
The Claimant is represented by Mr Jacobs and the Interested Party by Mr Ashley-Norman KC. I am grateful to both of them for their written and oral submissions. As well as my detailed notes, I have consulted the recording of the hearing whilst writing this judgment.
The Claimant is an English registered company and the Interested Party is a Cypriot company.
Bennathan J refused permission on the papers on 26 January 2022:
“1. The Claimant was convicted of 3 offences at Westminster Magistrates Court and appealed to Southwark Crown Court, and the application for permission essentially criticises aspects of the way the latter Court dismissed the appeal. The specific bases for the attack on the decision of the Crown Court are a refusal to adjourn and a refusal to allow the possibilities of submissions to be made by video link.
2. The history and background to the appeal hearing on 17 August 2021 is significant: the Claimant company alternated between not engaging with the court process and bombarding the court with lengthy multiple skeleton arguments. At times before the Magistrates Court and in making applications to this Court the Claimant clearly had [and has] very able lawyers acting at their behest, and the terms of many of the skeletons also give the appearance of being professionally created; yet at other times before both the lower courts the Claimant suddenly claimed to be unable to afford any legal representation at all. At one stage a long list of proposed defence witnesses was sent to the Crown Court, which list included the Director of Public Prosecutions, that totally lacked any attempt to justify the need, purpose or significance of any of them. Typically, it was late in the afternoon before the appeal hearing that the Claimant sent communications to the Crown Court. Most of the various communications sent to the courts, or referred to in documents submitted to the courts, were from unnamed individuals supposedly acting for the company, usually without any address or even general location given. The explanation given for the absence of any director from the appeal hearing [‘they are in red list or amber list [COVID] countries’] was typical in lacking any credible detail.
3. Against that background the decisions of the Judge at the hearing on 17 August were not only entirely justifiable but well-nigh inevitable. The Court was right to reject the application to adjourn a hearing that had been fixed for many weeks, or even months, on the basis of a small number of new pages of documents having been received late. The Court was similarly entirely justified in refusing video link facilities given the lack of any clarity or properly-established safe basis to do so. Once the appeal was not being advanced the Court was bound to find for the Respondent, the Interested Party.
4. A further ground for refusing permission is section 31(2A) of the Senior Courts Act 1981, that it appears to me ‘to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’. The offences of which the Claimant was convicted are of declaring the company dormant; they did so at a time when the company was conducting high value transactions, instructing lawyers, and litigating against other corporations. I have seen no hint in any of the voluminous papers submitted in this application of any defence to those allegations.”
Linden J granted permission following an oral hearing on 13 May 2022. He said it was arguable that:
“…. the judge should have given you an opportunity, by Livelink, to address the question of your authorization to appear before the court for the purposes of the appeal, and/or the consequences of what appears to me, although I make no final decision on it, your failure to comply with direction (vi) made by His Honour Judge Griffith on 27 July 2020. If the judge was then satisfied that the issue was satisfactorily addressed and that there was before the court, at least by Livelink, somebody who was authorised by the company, duly authorised by the company to represent it, then the judge would have moved on to consider the question of whether … or not there should have been an adjournment and again I say the judge's decision on that issue was in my view unsurprising. The concern that I am holding is arguable is a concern that you should have been able to have permitted to address the court before conclusion was reached on the matter as well.”
I gave case management directions for this judicial review following a CMC in December 2022 (see [2022] EWHC 3203 (Admin)), and I gave further directions in March 2023. (I should make clear Mr Jacobs said there was no objection to my hearing the full application).
In this judgment, ‘SFG’ stands for the Claimant's Statement of Facts and Grounds, and ‘SGD’ stands for the Interested Party's Summary Grounds of Defence. Unless otherwise noted, all dates are from 2021.
Chronology and factual background
The background to the dispute between the Claimant and the Interested Party is set out in the SFG and SGD. At [3] of the SFG the Claimant was described as follows:
“3. The Claimant is a private limited company incorporated on 8 November 2011. It is registered with Companies House under Company number: 07839142. The directors of the company are Igor Rudyk, Segundo Vargas, Hasbrone Overseas Limited. The company secretary is Pablo Saavedra. The Claimant is stated in Companies House records to be a non-trading company.”
A woman named Maria Sokolova appears in the story at several points. In her witness statement for this judicial review dated 29 October she described herself as an ‘anticorruption campaigner’ and a ‘polyglot translator’ who has in the past acted ‘as a legal tax specialist in an overseas jurisdiction and later as a commodity trading contracts/ corporate governance/M&A specialist in an overseas jurisdiction, for a non-English company.’ She said she is not legally qualified in this jurisdiction. I give leave to rely on this statement and to additional material in the Supplementary Bundle.
The SFG goes on to narrate how the Interested Party and the Claimant became involved in a dispute in Russia about the transfer of shares in a mine in Siberia to a sister company of the Interested Party. This led to litigation in Russia, and then eventually to the private prosecution at Westminster Magistrates Court.
The three charges eventually faced by the Claimant are described in the SFG at [8] as follows:
a. Charge 1: the Claimant dishonestly made false representations to Companies House between 15 October 2014 and 15 August 2018, namely that it was a dormant company, contrary to ss 1 and 2 of the Fraud Act 2006.
b. Charge 2: the Claimant on 15 October 2014 delivered company accounts for the year ending 30 November 2013, asserting that the company was dormant, and that the accounts were false, misleading or deceptive, contrary to s 1112 of the Companies Act 2006.
c. Charge 3: the Claimant on 30 August 2015 delivered company accounts for the year ending 30 November 2014 asserting that the company was dormant and that the accounts were misleading, false or deceptive, contrary to s 1112 of the Companies Act 2006.
The Interested Party's Opening for the appeal explained it was the prosecution's case that the Claimant was used as a ‘flag of convenience’, allowing those ‘really running [the Claimant] to distance themselves from the company’. At [32] it said:
“32. In summary, Lehram gained for itself the financial advantage of avoiding costs, and risked causing loss to HMRC and other regulatory bodies which might otherwise have an interest in it, and those behind the company must have appreciated this to be so.”
A prominent theme of the filings on behalf of the Claimant has been that its directors are at risk. The SFG contained allegations that ‘associates’ of the owners of the Interested Party have threatened to ‘kill, kidnap or incarcerate’ the Claimant's current and former officers, and that:
“11. … The Claimant maintains that its directors and former directors remain...
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