Red River UK Ltd. & Anor. v Sheikh & Anor.

On Tuesday of this week, 22^nd April, I heard a number of applications by Miss Sheikh pursuant to her application notice dated 31^st March of this year. Those applications arise in the context of her long running and bitter dispute with Red River UK Limited and Mr. Ismail Dogan, and in the context of the pending litigation in this Division which was commenced last year. On Tuesday I heard oral submissions from Miss Sheikh for at least three hours in addition to having from her a large quantity of written material in support of her applications. I also heard submissions from counsel for Red River and Mr. Dogan, Mr. Tom Smith.

At the end of the hearing I decided to reserve my judgment because a large number of issues had been raised and the court was presented with a very large amount of material in a number of bundles, most of which I had not had an opportunity to look at before the beginning of the hearing. I should also explain, although the parties know, that I am new to this matter, although it has been before the court on a large number of occasions since September of last year. I am, however, now the judge who has been designated to deal with it. That was another reason why I wished to take time to consider my judgment. I indicated that I would probably give an oral judgment, possibly at the end of this week, although more probably after Mr. Smith’s return from holiday the week after next.

That is how matters rested on Tuesday. The following day, Wednesday the 23^rd, Miss Sheikh wrote to the court, and I think also copied the letter to Isadore Goldman, giving notice of her intention to make a number of further applications before I gave my judgment. Those were set out in an application notice at that stage unissued although she said she would use her best endeavours to issue it before the hearing date. She also said that her time estimate for dealing with these further applications would be three hours.

In the light of that letter and subsequent correspondence, arrangements were made at very short notice for those applications to be heard today. As I have already explained to Miss Sheikh, she is in my view fortunate that the court was able to arrange for them to be heard at such short notice in a very busy week when there has between a lot of litigation to accommodate. It is fortunate that a two day VAT case which I was hearing ended up taking rather less time than was estimated. However, it is very important that Miss Sheikh should realise the pressures on court time and, indeed, on the respondents to her applications if they are bombarded with constant applications. It is essential that she appreciates the need for restraint in applying to the court and the need, if possible, for matters to be dealt with at one time and not in a serial fashion. I mention these matters because it seems to me the time may soon be coming when the court will have to consider, either of its own motion or on an application, whether to make some form of civil restraint order in relation to the applications being made. I mention that merely by way of a warning at this stage.

The position with regard to issue of the application notice is that it has still not been done although Miss Sheikh told me that she has now obtained the necessary remission of fees and it is therefore just a matter of formally issuing it. She has given an undertaking to do that and it is important that that step is taken as soon as possible after this hearing. As a solicitor she will of course appreciate the importance of complying with the rules.

The first application I have before me today is an application that a suitably experienced solicitor or counsel in the fields of finance, mortgage law and practice and conveyancing, land law and land registration practice should be retained to advise the court in relation to a series of the issues that have arisen in the current crop of applications. I understand that to be an application that the court should appoint an assessor pursuant to the power which it has in CPR 35.15. However, it is clear to me that this is not a suitable case for that unusual step to be taken. The matters in respect of which it is said that the court could be assisted are, in my judgment, all relatively straightforward conveyancing matters or questions of construction or procedure which fall well within the competence and experience of any Chancery Division judge.

Apart from that fact, Miss Sheikh herself is a solicitor with experience in those fields so she is well able to put forward the submissions upon which she wishes to rely, and I also have the benefit of the assistance of counsel for Red River and Mr. Dogan who will be well aware of his duty to the court to ensure that all relevant considerations, both for and against his clients, are taken fully into account. Against that background I think there is no danger of the relevant areas of law and practice not being properly ventilated and, on the contrary, I think it would cause extra delay, extra expense and general inconvenience to involve a court appointed expert at this stage, quite apart from the fact that that is a most unusual course to adopt in ordinary litigation which does not stray into highly technical or specialist areas. One of the matters relied upon by Miss Sheikh in support of that application is an alleged inequality of arms. However, as I have explained she is herself an experienced solicitor and she has indeed been represented by leading counsel or by experienced Chancery junior counsel at more than one of the earlier hearings. So bearing all that in mind, and also the fact that I have the assistance of counsel for the other side, I am not convinced that that factor carries much, if any, weight. Certainly it is not enough to persuade me that an expert should be appointed, so that application is therefore dismissed.

The next application is that I should stay giving my judgment on the applications which I heard on Tuesday until various steps have been taken. Firstly, it is said I should not give judgment until I have first heard an application made by Miss Sheikh on 12^th November last year seeking the delivery up by Isadore Goldman of her applications to withdraw restrictions at the Land Registry, those forms having been supplied by her pursuant to earlier court orders as a preliminary to the hoped for remortgage of the property. They are currently, as I understand it, held to her order but with a view to being used to enable a remortgage to go ahead if suitable terms can be agreed with a willing lender. That application has been adjourned to be heard with a number of other outstanding applications at a hearing which has been fixed for early June in this year. What Miss Sheikh now says is that I need to determine that application before I can decide whether or not to grant her permission to present a fresh winding up petition against Red River, and she says the reason for that is that the application is relevant to the possible refinancing which was one of the matters relied upon by Briggs J. in December in striking out her second winding up petition and ordering her not to present any further petitions without the permission of the court.

With all respect to Miss Sheikh, I cannot really follow the logic of that submission. It seems to me that the main grounds of opposition in relation to the question of issue of a fresh winding up petition are not to do with possible refinancing of the property, which it may well be is no more than a tenuous prospect at this stage, but rather reliance is placed on the fact that Briggs J. has already struck out two petitions, that there has been no material change of circumstances since December and, more importantly perhaps, that in any event there is a bona fide cross-claim available to Red River against Miss Sheikh arising out of breach of the settlement agreement. Whether or not that cross-claim is sufficiently clear and sufficiently substantial to amount to a valid cross-claim is one of the matters which I will need to consider in dealing with the application before me. I do not think I will be assisted one way or the other in dealing with that question by first of all having to deal with the question of delivery up of documents, which seems to me essentially a technical conveyancing sort of question, although I may need to go into the reasons why Miss Sheikh is so anxious to have the documents back in her possession.

In any event, it seems to me that that matter can and should be dealt with at the hearing already fixed for the purpose and I am not persuaded that there are any sufficient grounds for me to advance it in the order of priority and deal with it first before giving judgment on the relevant application which I heard on Tuesday.

A second allied point is that Miss Sheikh submits I should not give judgment until I have had available the transcript of the judgment delivered on 21^st December by Briggs J. She says, and I agree, that it is desirable that I should be able to see what his reasons were in full before I deal with that part of the application. The position, as I understand it, is that the judgment is in the course of being approved by Briggs J. and it is hoped that in the course of next week the corrected and approved transcript will be available. Since I will, in any event, not be able now to give judgment before the week after next, it appears that I will have an opportunity to study that transcript before I give judgment, and I certainly wish to do so and intend to do so unless some unforeseen events make it not available, but for the moment I will proceed on the footing that it will become available and that I will have an opportunity to consider it before I give judgment. So to that extent I agree with Miss Sheikh’s submission that I should not deliver judgment before that step has been taken, and indeed that was always my intention, although it is fair to say I did not say that in terms on Tuesday.

The next application is that I should also deal first with the sixth of the applications in the application notice of 31^st March. That is to say the application to set aside no fewer than 11 eleven earlier court orders made between 3^rd September 2007 and 10^th January 2008. My understanding is that the great majority, if not all, of those orders are currently under appeal in the sense that permission to appeal has been sought from the Court of Appeal by Miss Sheikh, and that application is still waiting to be dealt with pending production, among other things, or maybe in fact this is the only outstanding point, but in any event pending production of the approved transcript of Briggs J.’s judgment of 21^st December.

The position so far as Red River and Mr. Dogan are concerned is that they anyway wish me to deal with that application and to rule upon it when I give judgment. Indeed, they wish me to deal with all of the applications in the 31^st March application notice. Miss Sheikh herself chose not to pursue it on Tuesday and she wishes to persuade me to take a more staged approach and to deal only with I think five of her applications at this stage, and to adjourn or give suitable directions in relation to the others. In particular, in support of this application, she has raised suspicions that she now harbours that at some at least of those hearings two key pages from the most important documents were, according to her, withheld from the court, those being the third page of the settlement agreement and the fifth page of the consent order or Tomlin order of 3^rd September. I have carefully read what she has to say about this and she has shown me some documents upon which she wishes to rely in support of those suspicions. I have to say that I am unable to see any solid evidence at all to ground her suspicions, which do seem to me inherently most improbable. It is enough to say that Red River and Mr. Dogan have at all times been represented by counsel and solicitors. Miss Sheikh herself has been represented by counsel at a good number of hearings and is herself an experienced solicitor. It would be obvious to anybody if p.3 of the settlement agreement had been removed because it comes in the middle of that document. I find it simply incredible to suppose that those hearings can have proceeded with two such important pages of the key documents being either accidentally or deliberately removed and without anybody having noticed it.

In any event, all that seems to me irrelevant because by 4^th October, if not before, everything had been set up for completion and in particular a deed of priority in terms approved by the court had already been signed on Miss Sheikh’s side and was ready for exchange. So it is difficult to see how anybody can have had any problems arising out of the terms of those earlier documents and everything was apparently ready to proceed until the launch of the first winding up petition caused, as one can now see with hindsight, the whole transaction to abort. In any event, I can assure Miss Sheikh that I will take account of her submissions in relation to that part of the case in deciding how to deal with the sixth application when I come on to give my judgment upon it. What I am not prepared to do is to direct at this stage that it should be heard as a separate and prior application before I give my judgment.

The next application is that I should not give judgment until the so-called file 17 has been produced. According to Miss Sheikh that file will contain a detailed analysis of what she says are accounting and fiscal abuses and money laundering perpetrated by the claimants with documentation in support. She says it was not ready on Tuesday but would be ready within the next seven days. I decline to stay the giving of the judgment until that file is available because at the moment I cannot see it will be relevant to any of the questions which I have to decide at this stage. On the contrary, the likelihood is that it will contain a large number of allegations of a more or less extravagant nature and documentation allegedly in support of them. Whether or not anything important emerges from that is a matter which will have to be examined on a future occasion. I am not persuaded it is a matter which should hold up the giving of judgment at this stage. I come back to the point that it is important for Miss Sheikh to realise that she should have all her evidence ready when she makes applications to the court, and she cannot necessarily expect the court to adopt a stage by stage approach to suit her own convenience.

Finally, there is an application, or at least perhaps not quite finally but next there is an application that she should be enabled to examine the court file to discover whether the two allegedly missing pages were in fact before the court on the relevant hearing dates. As I have already said, her suspicions on this score appear to me to be speculative and without any solid foundation at this stage. That impression was reinforced when I was shown a copy of the first witness statement of Mr. Schaffer which refers both in its body in paragraph 17 to the settlement agreement, and makes it clear it is a five page document, and then in the exhibit itself one finds it indeed with all its five pages, so from the very beginning the document was exhibited in its entirety by Mr. Schaffer. That to my mind makes it entirely incredible that anyone should thereafter have thought it worthwhile to try to keep out the middle page pursuant to some mysterious desire to mislead the court or do down Miss Sheikh. In any event, as I understand it, examination of the court file will not reveal the bundles which were before the court on each occasion because those are normally returned after each hearing has taken place. Miss Sheikh is free as a party to apply to the Master in the usual way for permission to inspect the court files but I am certainly not prepared to hold matters up while that exercise is carried out.

Finally, and I think this time I do mean finally, there is an application that I should give permission to the parties to file further written submissions before I give my judgment. I am not prepared to grant that request. I have already now had two lengthy hearings and I have listened to lengthy oral submissions from Miss Sheikh. In addition, I had the benefit of voluminous written material submitted by her in the bundles before me. She has had ample opportunity to deploy her arguments at the two hearings and on paper and I wish if possible to avoid adding to the paper mountain which this case has already generated. I am not persuaded that there are any further matters upon which written submissions would add anything of value at this stage, so that application too will be dismissed.