Trebisol Sud Ouest SAS v Berkley Finance Ltd
| Jurisdiction | England & Wales |
| Judge | Charles Morrison |
| Judgment Date | 13 September 2021 |
| Neutral Citation | [2021] EWHC 2494 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB2013002929 |
[2021] EWHC 2494 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Morrison
(Sitting as a Deputy Judge of the High Court)
Case No: QB2013002929
Sam Neaman (instructed by Kingsley Knapley LLP) for the Claimants
The Third Defendant in person
Hearing dates: 28–30 July 2021
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.
Charles Morrison (sitting as a Deputy Judge of the High Court):
Introduction
This matter came before me as a trial but the essence of it is an application to enforce the terms scheduled to a consent order in Tomlin form. Argument was made before me by the Claimants on the one hand, seeking to enforce the scheduled terms, and the third defendant ( M. Varlot) on the other, resisting, for a variety of reasons to which I will turn shortly, the notion that effect should be given to them.
No other defendant participated in the trial. I was informed that both the first ( D1) and second ( D2) defendants had been dissolved in 2015 and 2014 respectively; that the fourth defendant ( D4) played no part in these proceedings; and that the fifth defendant ( D5) had sent an email message to the court “declaring” that he would not be in attendance.
I was informed by the Claimants that on 16 July, D5 had sent a draft application to the court seeking orders in terms that the court should cancel and archive the case without judgment due to the dissolution, liquidation or insolvency of five of the six parties in the case. That application was not issued and no one appeared before me to ventilate any argument in support of it. I therefore indicated to the parties that the court would proceed to determine the issue that was properly before it, and in respect of which the parties were entitled to a judgment.
The dispute between the parties has a protracted and convoluted history. The background was very well explained to me in skeleton arguments lodged by Mr Neaman for the Claimants and by M. Varlot. I should say at the outset that M. Varlot is a Frenchman now residing in Romania. Although he accepted that he was in receipt of some legal assistance “behind the scenes”, M. Varlot appeared before me alone. Nevertheless and having regard to the fact that English was not his first language, M. Varlot acquitted himself well and was able to communicate to the court effectively the nature of his case and in many instances the legal foundation for it. I was certainly obliged to him for his very detailed skeleton argument which was also lodged with the court before the commencement of the trial.
The background
It will be helpful if at this juncture I recount in outline the background to the dispute and why it is that the matter is now before the court for the enforcement of the terms of the schedule to a Tomlin Order.
In 2012 the Claimants were concerned to identify green energy business opportunities in Eastern Europe. In that quest they were introduced to M. Varlot who in turn introduced them to D5, and then D2. The defendants proposed to the Claimants a solar power plant project in Romania (the Melicon Project). D1 was put forward as the potential funder of the Melicon Project. D1 was controlled by D5 and D4.
D1 agreed to fund the Melicon Project with a €9m facility, but demanded an €800,000 cash deposit (the Deposit) by way of “guarantee” which D1 was entitled to draw upon only in limited circumstances.
The Melicon Project did not proceed and no loan facility was ever extended by D1. The difficulties between the parties began when the Claimants sought the return of the Deposit. Despite D2 having assured the Claimants that the Deposit would be kept “safe and untouched”, it transpired that the Deposit had been dissipated, principally to M. Varlot and D5.
Upon the discovery of the disappearance of the Deposit, proceedings ensued. A Worldwide Freezing Order was made by Collins J, sitting in this court on 10 June 2013.
The Worldwide Freezing Order was continued unopposed on the return date. No application was ever made to set it aside.
In February 2014, the action was settled by way of Tomlin Order and as a consequence, the Worldwide Freezing Order was discharged. The schedule to the Tomlin Order was a settlement agreement (the Settlement Agreement). The order itself recorded liberty to apply as to carrying out the terms of the Settlement Agreement without the need to commence further proceedings.
Despite the counterclaim for some €960,000, and the action claiming only €800,000, the settlement terms provided that D1, D2, M. Varlot and D5 (the Obligors) were to pay the Claimants €1.2 Million by way of instalments over a one year period. The Settlement Agreement contained an acceleration provision for the benefit of the Claimants if any instalment payment was not made on its due date.
By June 2014, the Obligors were already €400,000 in default under the Settlement Agreement, and no money at all had been paid to the Claimants. On the strength of an assurance from the Obligors of payment not only of the €1.2 million owed, but in addition, a further amount which the Obligors would realise from a “transaction” which was shortly due to complete, the Claimants were persuaded not to trigger the acceleration provision.
This assurance led to an agreement between the second Claimant ( C2), M. Varlot and D5. Described as the “Agreement of Participation In Financial Transaction” ( APFT), this agreement provided for M. Varlot and D5 to use amounts from what was explained as the monetisation of a financial instrument, to discharge the sums due under the Settlement Agreement, and in addition, allow the Claimants to retain 3% of the monetised amounts together with a “premium” of €300,000. It appears that no monies were paid to the Claimants pursuant to this agreement.
No amounts by then having been paid under the Settlement Agreement, in July 2014 the Claimants were again persuaded to forbear in respect of their rights, and assented to enter into a further agreement whereby additional sums were promised upon the monetisation of two financial instruments.
By the end of September 2014, no payment had been made under the Settlement Agreement, €800,000 was now due; and nothing had been paid under the APFT or its July addendum.
On 28 September 2014, a yet further addendum agreement was entered into whereby M. Varlot and D5 promised 30% of their commission on three “transactions in progress”, namely the monetisation of three bank instruments: one of €250 Million, and two of €50 Million.
Whilst one might have thought that the Claimants' seemingly inexhaustible reserves of patience had by this point been depleted, it appears that, ever hopeful of a payment, they were persuaded to enter into a yet further agreement: the so-called “Agreement of Collaboration on financial transaction”. Consistent with the by now familiar pattern, no payments to the Claimants were ever made under it.
Another party now entered the scene. A lady by the name of Mme. Bratkova contacted the Claimants explaining that she was a legal adviser to an American company by the name of JP Financial Development Corp (Global) ( JP). The Claimants it seems had understood JP to be a party with the ability to provide funds to M. Varlot and D5. Mme Bratkova suggested that she would assist in reaching a satisfactory conclusion to the long-running debt saga.
The involvement of Mme Bratkova produced yet another agreement for the parties to enter into. This agreement was described as an “Amicable & Compromise Agreement” ( ACA) and it was sent to M. Dubost for the Claimants in July 2015. M. Dubost signed the final version of this agreement on 30 September 2015.
The parties to the ACA were the Claimants as “Party A”, and an English company, Northen Cross Financial Services Ltd ( NCFSL) as Party B. The signatory for NCFSL was D5. NCFSL was incorporated on 28 September 2015, the day before the ACA document containing the names of the parties was sent to M. Dubost for signature. I am told by the Claimants that this company never traded and that it was struck off the register in 2017.
The ACA is a very important document for the purposes of the matters now before me. It is because of the terms of the ACA, among other grounds relied upon by him, that M. Varlot says that he is not obliged to pay any sums to the Claimants pursuant to the Settlement Agreement.
No monies were paid to the Claimants pursuant to the terms of the ACA, the Settlement Agreement, or as I have already indicated, any of the other agreements that followed it.
In due course the Claimants applied to enforce the terms of the schedule to the Tomlin Order. In accordance with various procedural orders made, Points of Claim, Points of Defence and Counterclaim, and Points of Reply and Defence to Counterclaim were filed and served.
The dispute
The Claimants say that M. Varlot and D5 have not paid any of the sums due under the Settlement Agreement and are therefore jointly and severally liable for the substantive sum of €1.2 Million plus interest (plus costs). On the pleadings, M. Varlot and D5 do not dispute the obligation to pay under the Settlement Agreement. M. Varlot defends the claim on the basis that:
i) the ACA, which he terms an “Exclusion Agreement” operated to discharge him from any liability under the Settlement Agreement; and
ii) because they knew that M. Varlot would act upon the ACA, which he did, the Claimants are now estopped from enforcing the Settlement...
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