Tulip Trading Ltd (a Seychelles company) v Roger Ver
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Falk |
| Judgment Date | 09 November 2022 |
| Neutral Citation | [2022] EWHC 2970 (Ch) |
| Docket Number | Case No: BL-2021-000313 |
| Court | Chancery Division |
[2022] EWHC 2970 (Ch)
Mrs Justice Falk
Case No: BL-2021-000313
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr B Friedman (instructed by ONTIER LLP) appeared on behalf of the Claimant/Respondent
Mr A Charlton KC & Mr D Khoo (instructed by Brett Wilson LLP) appeared on behalf of the 14th Defendant/Applicant
This is my decision on the application by Roger Ver, the 14th defendant in these proceedings, to set aside orders granting Tulip Trading Limited (“TTL”) permission to serve Mr Ver out of the jurisdiction.
On 25 March this year I handed down judgment upholding jurisdiction challenges made by the 2nd to 12th, 15th and 16th defendants ( [2022] EWHC 667 (Ch)) (“the March Judgment”). I found in favour of those defendants on the basis that TTL had not established a serious issue to be tried on the merits of the claim. In making directions for a consequentials hearing I ordered that one of the matters to be considered was whether the order I made should be extended of the court's own motion to cover other defendants. TTL opposed this for various reasons, including that it maintained that Mr Ver's control of the relevant network, being the BCH network (see the March Judgment at paragraph 2), was sufficiently different to the control by the other defendants of different networks, such that the order should not be extended.
The consequentials hearing in relation to the March Judgment was on 6 May. I did not extend the order to cover Mr Ver, or indeed the other defendants not covered by the March Judgment (that is, the 1st and 13th defendants). Shortly afterwards, on 12 May, TTL's solicitors informed Mr Ver's solicitors that, for the purposes of Mr Ver's jurisdiction challenge, TTL was prepared not to pursue the argument that there was a material distinction between Mr Ver and the other defendants. The parties then corresponded with a view to agreeing a draft order disposing of Mr Ver's application, but they failed to reach agreement. During June the application was listed for hearing in the present hearing window.
On 11 August Andrews LJ granted permission to appeal against my orders made in March and May (“the Related Appeals”). Permission was granted on the question of serious issue to be tried. That led TTL to invite Mr Ver to adjourn his application, and on 27 September TTL issued a formal application seeking to adjourn this hearing and to stay Mr Ver's challenge until after determination of the Related Appeals. That application for a stay was heard by Master Clark on 14 October and dismissed by her in a judgment given on 21 October.
It is important to note that Mr Ver limits his challenge to the serious issue to be tried question, and TTL is not now arguing that there is any material distinction between Mr Ver and other defendants. TTL accepts that if the other defendants' challenges succeed, it will not resist Mr Ver's application. Mr Ver has previously accepted that if the other defendants' challenges failed then he would not pursue his challenge.
In the circumstances, and where the stay application has been dismissed, one might wonder why this hearing was required. The real issues between the parties relate to (a) what happens in respect of the hearing of the Related Appeals in the Court of Appeal and, if the matter proceeds further, what might happen in the Supreme Court; and (b) costs.
On the first of those points, the appeal to the Court of Appeal is due to be heard on 7 and 8 December this year. Mr Ver wants to be heard on that appeal, and indeed in the Supreme Court if the case gets that far. Although TTL has agreed that Mr Ver should have the opportunity to be heard as a non-party, Mr Ver is concerned that the Court of Appeal may not agree with that, particularly since there is some indication that his participation might be opposed by other defendants. Instead, Mr Ver wants an accelerated process for an Appellant's notice and a Respondent's notice, with a view to the appeals being listed together if possible. I note at this point that paragraph 25 of PD 52C places a positive obligation on parties to seek directions as to whether two or more appeals pending in the same or related proceedings should be heard together or consecutively by the same judges.
TTL is obviously very keen not to have the hearing in the Court of Appeal derailed by an adjournment being ordered to allow the appeals to be heard together, and it is concerned that Mr Ver may take action to seek to disrupt the appeal process. However, TTL has been willing to entertain an expedited timetable with a view to allowing the appeals to be listed together if that is possible without an adjournment occurring.
TTL's primary position before me is that this court should defer giving judgment on Mr Ver's application until after the Court of Appeal has handed down its own judgment. Its secondary position is that Mr Ver's application should be rejected now on the basis that, in light of permission to appeal being granted on the Related Appeals, there is in fact a serious issue to be tried. TTL refers to that as the “Threshold Issue”. It puts a further alternative, if neither of the first two are accepted, that I should give judgment in Mr Ver's favour, grant permission to appeal but extend the time for the Appellant's notice until after the Court of Appeal's determination.
During the hearing this morning, TTL's underlying concerns became clearer, essentially that the correspondence had left them with the impression that Mr Ver was seeking to reserve the right to take steps to disrupt the appeal. Some of the specific concerns raised were addressed during submissions. In particular, Mr Charlton for Mr Ver made clear that he would not object to a direction shortening the period for the Respondent's notice, with a skeleton argument being required to be provided on the same day, or to the inclusion in the order of a recital accepting that for the purposes of the appeal Mr Ver is in a materially identical position to the other defendants. Mr Ver has not agreed that he would not raise any different points to the other defendants in the Respondent's notice, but Mr Charlton informed me that none had been identified so far. Rather, Mr Ver is just seeking to preserve the ability to raise a different point in case it occurs to his advisers when they consider the matter in more detail. Given that it is proposed that the Respondent's notice and skeleton argument would be filed some two weeks before the current date of the appeal hearing, I am not persuaded that this approach is unreasonable.
Further, Mr Ver would not commit not to apply to adjourn the hearing of the Related Appeals if the Court of Appeal effectively say that he is too late to join that appeal hearing as a party. Mr Charlton says that this issue is likely to prove academic because Mr Ver has already agreed that his submissions would be confined to one hour. I also understand that a joint letter to the Court of Appeal has already been discussed and, from what I can see, should be capable of agreement.
Turning to the alternative positions put forward by TTL, in summary I do not accept any of the options presented. Both the first one, delaying handing down judgment, and the third one, extending time for the Appellant's notice, involve an element of seeking to rerun arguments made before Master Clark, but I think there is a more fundamental reason to refuse to accede to the proposals. As regards the second, as I will explain, the cases relied on do not provide authority for the proposition being put.
Deferring judgment
Dealing first with the proposal that I should defer handing down judgment, as an initial point it is worth referring to the Master's...
To continue reading
Request your trial
-
Kamlesh Patel v Isabelle Michelle Paule Awan
...seen clearly in a number of the authorities such as Excalibur at [24] and other authorities (see for example Tulip Trading Ltd v Ver [2022] EWHC 2970 Ch). However, it is for the paying party to raise any concerns they have on some proper basis at the time at which the court is considering ......