The New York Laser Clinic Ltd v Naturastudios Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Clive Sheldon,Clive Sheldon |
| Judgment Date | 09 June 2020 |
| Neutral Citation | [2020] EWHC 560 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case Nos: TLQ18/0230 QB-2016-003040 |
| Date | 09 June 2020 |
[2020] EWHC 560 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Clive Sheldon QC
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Case Nos: TLQ18/0230
QH16X0444
QB-2016-003040
Juliette Levy (instructed by Cerulean Law) for the Claimant
Stuart Cakebread (instructed by Cerulean Law) for the First Defendant
Duncan Macpherson (instructed by Tenet Compliance and Litigation) for the Second and Third Defendants
The Fourth and Fifth Defendants did not appear and were not represented
Hearing dates: January 27 th & 28 th 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.
Mr Clive Sheldon QC
Clive Sheldon QC, sitting as a Judge of the High Court:
On October 30 th 2019, Cavanagh J. issued a judgment in favour of New York Laser Clinic Limited (“NYLC”), and awarded damages against Naturastudios Limited in the sum of £3,876.830. On November 15 th 2019, at an ex parte hearing, Her Honour Judge Coe QC, sitting as a Deputy High Court judge, made a post-judgment freezing order in favour of NYLC, as against 5 Respondents: (1) Naturastudios Limited; (2) James Henry Anderson; (3) Natura Academy Limited; (4) Natura Group Limited; and (5) Naturahealth Limited.
The matter came back before HHJ Coe QC at an inter partes hearing on November 26 th 2019. There was not sufficient time to consider all of the issues. The order was continued, with some variations, and a direction was made that the matter be listed for a further hearing. That further hearing came before me on January 27 th–28 th 2020.
At the hearing before me, NYLC sought a continuation of the freezing order against each of the 5 Respondents. 2 of those Respondents, James Anderson and Natura Academy Limited, sought to discharge the freezing order made by HHJ Coe QC; and they resist the application to continue the order against them.
The evidence before me consists of: (1) the first affirmation of James Talfourd-Cook (November 14 th 2019); (2) the fifth witness statement of Mr. Talfourd-Cook (August 1 st 2019); (3) the sixth witness statement of Mr. Talfourd-Cook (October 10 th 2019); (4) the sixth witness statement of Liane Atcheson (July 8 th 2019); (5) the transcript of the application hearing on November 15 th 2019, and the Claimant's skeleton argument for that hearing; (6) the affidavit of James Anderson (November 22 nd 2019); (7) the third witness statement of Mr. Anderson (November 25 th 2019); (8) the fourth witness statement of Mr. Anderson (January 21 st 2020); (9) the seventh witness statement of Mr. Talfourd-Cook (January 23 rd 2020); (10) the witness statement of Lane Bednash (January 23 rd 2020); and (11) a letter from James Dewar, Associate Director, KPMG LLP (January 27 th 2020). I am not taking into account the further witness statement provided by Mr. Anderson after the hearing. It merely seeks to make good some points made by his Counsel in submissions before me, and is not corroborated by any third party. I do take note, however, of the exhibit to that statement which consists of NYLC's latest accounts as these are important to the issues that I need to consider and were referred to by Ms. Levy in her submissions.
The nub of the argument made by Ms. Levy, acting on behalf of NYLC, before HHJ Coe QC at the ex parte hearing, and before me on the return date, was that each of the corporate Respondents are “ciphers” of Mr. Anderson, and that he has taken a number of steps to strip Naturastudios Limited of assets so as to make the company “judgment proof”: to avoid making payment to NYLC in respect of the judgment that it has obtained. Ms. Levy has argued that the obvious inference is that if Mr. Anderson and his “ciphers” are not restrained, further dissipation of the assets of Naturastudios Limited will occur.
I. Summary of the underlying claim
NYLC operates a number of clinics providing non-invasive, aesthetic, procedures to their clients. Most of their income is derived from the provision of laser hair removal services. NYLC bought, via hire purchase contracts, a number of Magma Lasers for their business. Naturastudios Limited, a company incorporated in Scotland, whose chief executive and sole shareholder was James Anderson, was the sole distributor of Magma Lasers in the United Kingdom, and induced NYLC to purchase the Magma Lasers.
NYLC experienced difficulties with the Magma Lasers and, on December 21 st 2016, they issued proceedings against Naturastudios Limited in the High Court for damages for negligent misstatement. On October 22 nd 2018, NYLC notified Naturastudios Limited that they wished to amend their claim to allege breach of collateral warranty, with a consequent claim for damages for loss of profits. This amendment was allowed on December 21 st 2018.
A trial of the claim took place before Mr. Justice Cavanagh, commencing on October 8 th 2019. On October 30 th 2019, Cavanagh J. handed down judgment in which he found in favour of NYLC on both causes of action. As well as awarding damages against Naturastudios Limited in the sum of £3,876.830, Cavanagh J. ordered that Naturastudios Limited pay the costs of the claim. Naturastudios Limited were ordered to pay £250,000 on account of costs by November 13 th 2019. This order has not been satisfied. NYLC also had liberty to make an application under section 51 of the Senior Courts Act 1981, which would enable the company (if so advised) to seek costs from Mr. Anderson personally. The judgment of Cavanagh J. is to be found at [2019] EWHC 2892 (QB). It can be seen from paragraph 260, that the learned judge awarded damages for loss of profits on the collateral warranty claim in the sum of £3,580,097.00.
II. Detailed Chronology
It is necessary for me to set out a detailed chronology of what took place, or what is alleged to have taken place, so that I can deal properly with the applications that were before me.
Mr. Anderson has worked in the aesthetics business since 2004. On January 23 rd 2012, he incorporated Naturastudios Limited in Scotland. In July 2017, Naturastudios Limited registered the Veinaway trademark; in April 2018, Naturastudios Limited registered the naturastudios trademark.
On December 4 th 2018, shortly after NYLC had issued an application to add the collateral warranty claim, a variety of steps were taken by Mr. Anderson with respect to the Respondent corporate entities. Naturastudios Limited passed a resolution to change its name to Natura Academy Limited. On December 11 th 2018, the name was changed back to Naturastudios Limited. On December 13 th 2018, Naturastudios International Limited (another entity which had been set up by Mr. Anderson) changed its name to Natura Academy Limited. On December 14 th 2018, Mr. Anderson incorporated Naturahealth Limited.
The decision to allow NYLC to amend its particulars of claim was appealed. On January 23 rd 2019, before the appeal was heard, Natura Group Limited was incorporated. On February 1 st 2019 Freedman J. dismissed an application by Naturastudios Limited to vacate the trial date, which had previously been fixed within a window of January 11 th to April 17 th 2019. On February 13 th 2019, the Court of Appeal upheld the decision to permit the amendment to the particulars of claim, but adjourned the trial. A trial was subsequently fixed for 10 days from October 8 th 2019.
On April 25 th 2019, Naturastudios Limited filed unaudited accounts for the year ending June 30 th 2018. These showed the company having net assets of £128,382, and having available cash of £142,837, an increase from £52,031 in the previous year.
In May 2019, Mr. Anderson met with BDG Group Limited. They are unlicensed insolvency practitioners. “BDG” stands for “Business Debts Gone”. Their website states that
“We can't of course do anything that breaks the law. But we can and will put ourselves as far as possible in your shoes, and represent your best interest to help you avoid proceedings and problems”.
In addition, they refer to the fact that they have
“no professional body to answer to or licence to protect, so we can fight your corner to the fullest extent the law allows without any professional body reprimanding us for using ‘dirty tricks’ against the people we are protecting you from.”
I have seen a copy of BDG Group Ltd.'s terms and conditions. These provide that they agree to acquire “the Target Company” for a purchase consideration of £1. The purchaser's obligations include (i) the execution of a purchase and sale agreement with the shareholders of the Target Company; (ii) the appointment of directors to the Target Company upon acquisition; (iii) the change of the registered office of the Target Company; (iv) the change of the name of the Target Company should the Client require it; (v) communicating with creditors of the Target Company informing them that they have purchased the Target Company; (vi) dealing with all legal and statutory obligations of the Target Company as owners and directors; (vii) appointing an insolvency practitioner should it be necessary to instigate formal insolvency proceedings.
Mr. Anderson has said that he did not retain the services of the BDG Group Limited. Nevertheless, records at Companies House show that, on May 12 th 2019, Mr. Anderson resigned as the sole director of Naturastudios Limited, and Mr. Kell was appointed in his place. In addition, Mr. Anderson transferred his sole shareholding of Naturastudios Limited to Mr....
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