Therium (UK) Holdings Ltd v Mr. Guy Brooke and Others
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Popplewell |
| Judgment Date | 07 October 2016 |
| Neutral Citation | [2016] EWHC 2477 (Comm) |
| Docket Number | Case No: 2016-214 |
| Date | 07 October 2016 |
| Court | Queen's Bench Division (Commercial Court) |
[2016] EWHC 2477 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr. Justice Popplewell
Case No: 2016-214
Mr. Charles Dougherty QC and Mr. Joseph Sullivan (instructed by Harcus Sinclair LLP) for the Claimant
Mr. Simon Williams (instructed by Direct Access) for the First Defendant
Judgment Approved
On 2nd and 4th August 2016, I heard Therium's application to commit Mr. Brooke to prison for contempt of court. Mr. Brooke did not attend the hearing. In an e-mail sent on the eve of the hearing, he claimed to be medically unfit to do so. I rejected the application made on his behalf to adjourn the hearing, for the reasons set out in my judgment of 2nd August. In short, I concluded that he was fit to attend, but had chosen to absent himself.
At the conclusion of the hearing, I announced my findings that he was in contempt in a number of the respects alleged, for the reasons that I said I would deliver in writing thereafter, but which were essentially those advanced by Therium in argument. I reserved my decision on the remaining allegations of contempt for further consideration, and I adjourned sentence to a hearing fixed for today. My further findings of contempt, and reasons for those and my earlier findings are set out in the written judgment which I circulated in draft earlier this week and handed down this morning. There is no need, in this judgment, to recite the facts or the history of the proceedings which are set out in those judgments. The most serious of the contempts, which I have found proved, are that Mr. Brooke caused the Claim Proceeds to be transferred out of the Curaçao account, in breach of restraining freezing orders, failed to procure that Cable Plus paid those Claim Proceeds into court, and has failed to tell Therium where the Claim Proceeds are.
When I adjourned sentence on 4th August I ordered Mr. Brooke to attend the hearing today. I issued a warrant for his arrest for that purpose and I made clear that he would likely be facing a substantial prison sentence, which he might avoid by purging his contempt by procuring the transfer of the Claim Proceeds into the Court Funds Office. Mr. Brooke has not attended today. He has not purged his contempt and the warrant for his arrest has not been executed.
Mr. Williams has, again, appeared on his behalf. Mr. Williams sent an e-mail to my clerk yesterday in response to a request as to whether Mr Brooke would be attending. It confirmed that he would not be attending and said:
"He once again apologises for his personal absence, but instructs me that his medical condition is once again such that he is unable to travel. He has asked me to pass on to Mr. Justice Popplewell the attached medical report in German, but with an English translation, which relates to his condition in early August, the time of the last hearing. He has not been able to obtain a report in relation to his current condition. He would ask that a copy of the report is not passed to the claimant or its representatives, but borne in mind by the judge when he considers sentence at the hearing tomorrow."
The e-mail was not copied to Therium or its legal advisers.
That was an entirely improper approach to take. It will very rarely be appropriate to put material before the court which is relevant to the substance of an application, without making it available to the other side. This is not such a very rare case.
There are several reasons for that, amongst which are that the interests of justice and common fairness require that the other side should have an opportunity to consider and make submissions on any material which is to be put before the court and, if so advised, to adduce further material in relation to it. Moreover the principle of open justice requires that the public should have access to any material which is relied on in a hearing in open court, save only where the narrow derogations from that principle, which are set out in the rules and the authorities, are made out. Such narrow derogations have to be made out by an application to the court to sit in private or to treat the material as being in private. It is doubly wrong for material to be sent to the judge, in the way which Mr. Williams did, without even alerting the other side to the fact that such a course is being taken.
I therefore responded through my clerk to Mr. Williams, making clear that this course was inappropriate, alerting Therium's advisers to the fact that it had taken place, and explaining that I had not looked at the attached medical report. Following that, the medical report was made available to Therium's advisers. The request that I consider it without it being provided to them was withdrawn and no objection was taken to it being put before me. I have, therefore, read it. Mr Williams has apologised for the course he took.
What it comprises is a report by a doctor when discharging Mr. Brooke from hospital on 11th August 2016, that is to say, some two months ago. It reveals that Mr. Brooke presented himself to the casualty department of a hospital in Graz on 6th August 2016 on the grounds that he was suffering from excessive breathlessness. He said that it had been brought on by stress during the previous months and had essentially come on in its severe form in the last two days. The diagnosis was that there was also some infection, which was treated by antibiotic medication and he was discharged on 11th August 2016. The report concluded that Mr. Brooke was in a good general state of health, with his cardiorespiratory problems significantly improved, and was being cared for at home. The medical report affords no explanation for his non-attendance today; nor indeed does it afford any explanation for his non-attendance on 2nd August 2016.
There has been put in evidence before me, by Therium, an article in The Sunday Times newspaper, which was published on 25th September 2016, a little under a fortnight ago. It is by a reporter who said he had spoken to Mr. Brooke and quoted Mr. Brooke. It included a photograph of Mr. Brooke in a wheelchair, in apparent good health, which the text of the article implies was taken when the reporter spoke to him recently. It includes the following passages:
"For a man on the run, Guy Brooke is not particularly mobile. Aged 78, confined to a wheelchair, with a spluttering cough that comes from chronic lung disease, he looks unlikely to outpace even the most portly policeman.
Yet sitting in the courtyard of a five- star hotel somewhere in Europe last week, the retired businessman explained how he has spent the past five months dodging a litigation funder.
…
The London-based litigation funder has secured a worldwide freeze on his assets and is pushing for a two-year prison sentence as a 'coercive' measure to make Brooke hand over the money. He has already been found in contempt of several High Court orders.
Brooke slipped out of Britain in April and went into exile with his long-term girlfriend, Emmy Ettema. They have moved from country to country, from rented flat to rented flat, living 'day to day' on money provided by old friends. Brooke, a former trader with close-cropped white hair and sharp blue eyes, said the couple felt 'as though we're being harassed'. He is determined not to give up, however. He claimed the law firm that introduced him to Therium had failed to advise him properly on the funding agreement, which he believes was flawed.
'It's our money', Brooke said. 'For €4m I can take a few problems, you know. It's not a bad reward. They'll just have to put up with it. They've tried everything they could, intimidation-wise. They've been quite vicious.'
He said the proceeds of the case were now beyond even his reach because the director of his Caribbean company had moved them elsewhere. Therium 'will need a good bloodhound' to find the millions, he added, with a smile. 'Or Sherlock Holmes.'
…
Rolling his wheelchair back and forth in the hotel courtyard and dragging on an ecigarette,...
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