Campbell v Campbell

These proceedings concern an application on notice for a freezing injunction sought by Richard Andrew Campbell against his brother, Robert Campbell. The application forms part of wider proceedings relating to the dissolution of the partnership between the two brothers, and is made by Richard Campbell to protect his anticipated entitlements in that dissolution. For ease, but without intending informality, I shall refer to the two brothers as “Richard” and “Robert”, as was done in earlier proceedings.

The injunction seeks to prevent Robert from dealing freely with his principal asset, being his beneficial interest in 50 shares in Longton Holdings Limited (“Longton”), a Jersey-registered company. The other 50 shares in Longton are owned beneficially by Richard. Although the company is owned equally by the two brothers, it does not form part of their partnership assets. Longton’s principal asset, worth in the order of £23 million, is a long leasehold title to property on Bond Street, London, currently used by the partnership business.

In broad terms the proposed freezing injunction would prevent Robert dealing with his Longton shares other than by way of sale at a price not less than £11,500,000. From the sale proceeds, £11,500,000 would then need to be paid into the client account of Taylor Wessing LLP (Robert’s lawyers) and used only to pay certain of Robert’s own legal costs and costs liabilities to Richard, and otherwise held to the order of the Court. As usual, the terms would be subject to Richard’s written agreement or the consent of the Court.

The interim order made by the Chancellor on 16 June 2017 pending the outcome of this hearing is in similar form.

The proposed figure of £11,500,000 represents coverage of £2,500,000 for Robert’s past and future legal fees and costs, and £8,338,157 anticipated by Richard as likely to be owed to him in effecting the partnership dissolution (including certain anticipated costs orders against Robert in Richard’s favour). These costs orders include orders anticipated in the partnership dissolution, plus an anticipated costs order of £800,000 (“the Jersey costs”) arising as a result of litigation in Jersey concerning the beneficial ownership of the Longton shares and certain loans owing to Longton.

If the injunction is ordered, there is now no dispute as to the quantum to be covered by it, at least initially. Counsel for Robert made this concession on the morning of the hearing, thus reducing considerably the court’s need to consider a great deal of disputed valuation evidence. This concession that Richard’s potential claim is arguably as large as £8,338,157 is for the purposes of this application only, and involves no concession at all in respect of the underlying dispute as to quantum which will be resolved in the taking of the account in the partnership dissolution proceedings. In addition, Robert accordingly reserves the right to apply to vary any order of the court as and when such points on quantum are resolved. I note that Robert did not dispute the inclusion of the anticipated Jersey costs as protected by the requested injunction, these being merely noted as a potential reason for varying the order (as, prior to this concession, they had merely been noted in the dispute as to quantum).

To complete the story, Richard is and it is proposed would remain subject to an undertaking recorded in the order of Mr Rosen QC dated February 2017 (“the Undertakings Order”) that he would not deal with any interest in his Longton shares without first giving Robert 28 days’ prior written notice.

Initially this application had also included related orders for disclosure, but various voluntary undertakings (in early July) and documentary disclosures (in mid-June) made by Robert to Richard rendered those associated orders unnecessary.

Robert and Richard have worked together for more than 20 years in a worldwide jewellery business initially run by their mother. In 2012 they fell out bitterly, and these proceedings and the underlying partnership dissolution are the result.

Following a seven-day trial before Mr Rosen QC (sitting as a Deputy Judge of the High Court) in November 2016, the judge concluded, in a judgment handed down on 26 January 2017, that Robert’s and Richard’s interests in the partnership were equal, that the partnership assets included interests in various UK and overseas entities (detailed below), and that Robert had committed certain breaches of duty during the course of the partnership that would need to be brought into account in dissolving the partnership so as to ensure Richard was appropriately compensated. To effect that, the trial judge ordered that the accounts should go back 10 years, commencing on 1 January 2007, in order to ensure proper accounting of various partnership drawings and certain “striking” breaches of duty by Robert (judgment, para 148). Permission to appeal this decision was denied by the Court of Appeal on 26 April 2017, and the accounting process is now underway.

The entities through which the partnership business was run include Lucie Campbell LP (“LCLP”, an English limited partnership) and Lucie Campbell Corporation (“LCC”, a New York company), both under the day-to-day control of Richard; and Milling Lock Limited (“MLL”) and RC Jewellery Trading Co Limited (“RCJL”) (both Thai companies) and Azure Gold Limited (“AGL”, a BVI company), all deemed to be under the day-to-day control of Robert.

In the unusual circumstances of this case (described below), the trial judge envisaged the winding up being effected by an in specie distribution to each brother, with Richard acquiring sole ownership and control of the London and New York assets and Robert the Thai and BVI assets, and then an equalising payment to ensure that in financial terms each brother obtained an equal share of the partnership assets. However, paragraph 17 of the judge’s order (“the Main Order”, dated 23 February 2017) granted the parties permission to apply to the court to review and vary the proposed distribution in specie.

If the winding up of the partnership takes place in this way, then Richard’s now uncontested position (for the purpose of this application) is that Robert may be liable to him in the sum of £8,338,157 by way of equalisation payment and various costs orders.

Without going into the full history of this longstanding partnership (that appears in the trial judge’s judgment: see especially paragraphs 1-32), one particular detail is material. The trial judge found that Robert had from the outset had control over RCJL, MLL and AGL, and had at various stages between 2002 and 2010 arranged for the shares in these companies to be registered wholly or in a significant part in the names of his Thai wife, Narumol Hotrabhvanon or “Nat”, and their children, all Thai nationals.

Some part of these transfers may well have been motivated by restrictive Thai laws on foreign ownership, but the trial judge also concluded that most of these transfers had been made without informing Richard or obtaining his consent, without due provision for the protection of the assets of the partnership (in particular, by requiring blank share transfer forms from the Thai nominees as had been done when RCJL was initially formed), and in order to “exploit” Robert’s control and Richard’s vulnerability, Robert considering himself “able and for his own reasons justified in excluding Richard and seeking to appropriate his equal interest” (para 101, and see also para 146).

Further, Thai law does not recognise trusts. In the result, therefore, Robert’s “striking” breaches of his duty to protect the assets of the partnership had resulted in neither partner having legal control over the three foreign companies that the trial judge considered were partnership assets, although the assets remained under the practical control of Robert.

The trial judge therefore concluded that the partnership assets included either these foreign entities themselves or Robert’s personal obligation to account to the partnership for their value. This practicality was the driver for the in specie distribution proposed by the trial judge. It ensured Robert was left to sort out the legalities and practicalities of his control over the Thai and BVI entities, thus denying him the ability to “hide behind this control structure” to resist relief (judgment, para 114(f)). It also avoided the potential expense and delay of a winding up and cash distribution of all the entities, including the Thai and BVI companies (judgment, paras 118-119).

This application is for a freezing injunction over assets located outside England and Wales, being Robert’s beneficial interest in the 50 shares in Longton, a Jersey company. The requested injunction is partly in aid of domestic proceedings (the partnership dissolution proceedings described earlier) and partly in aid of foreign proceedings (the proceedings in Jersey brought by Richard in which he successfully claimed a 50% interest in the shareholding in Longton and in certain loans made to Longton). The injunction is intended by Richard to protect anticipated judgment orders against Robert in relation to the equalising payment in the partnership dissolution and the costs orders in those dissolution proceedings and the Jersey proceedings.

Robert opposes the injunction in its entirety, as being inappropriate in principle or at least inappropriate as to the total sums proposed by Richard (and this notwithstanding the concession as to quantum described earlier).

The English courts have jurisdiction to grant worldwide injunctions in aid of both domestic proceedings (pursuant to section 37(1) of the Senior Courts Act 1981) and foreign proceedings (pursuant to section 25(1) of the Civil Jurisdiction and Judgments Act 1982 and the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997).

The principles on which the English courts will grant such injunctions are well settled and not disputed by the parties, although their preferred emphasis and proposed application of these principles to the facts in issue differs. Section 37(1) of the Senior Courts Act 1981 (“the SCA 1981”) provides: “The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.”

In determining whether it is “just and convenient” for the court to exercise its discretion in favour of ordering an injunction in aid of domestic proceedings, three factors are important: see Alternative Investment Solutions (General) Ltd v Valle De Uco Resort & Spa SA [2013] EWHC 333 (QB), per Cranston J at [7]-[8].

First, the claimant must have a good arguable case on the merits of the substantive claim, meaning “a case which is more than barely capable of serious argument, and yet not necessarily one which the judge believes to have a better than 50 per cent chance of success”: Lakatamia Shipping Company Ltd v Nobu SU Ltd [2012] EWCA Civ 1195, per Longmore LJ at [19] and [25]-[28]; Ninemia Maritime Corporation v Trave Schiffahrtgesellschaft MBH und Co KG (The Niedersachsen) [1983] 2 Lloyd's Rep 600, per Mustill J at 603, 605; [1983] 2 Lloyd's Rep 600, 613–614.

Secondly, the defendant must have assets within the jurisdiction or, failing that, assets outside.

Thirdly, there must be a real risk of dissipation of these assets such that there is a real risk of a judgment in the claimant's favour going unsatisfied if the injunction is not granted: Derby v Weldon [1990] 1 Ch 48 at 57D-E. There is, however, no need to establish dishonesty or fraud or an intention on the part of the defendant to dissipate assets to avoid liability, although where there is a good arguable case of dishonesty or fraud the risk of dissipation may speak for itself: Alternative Investment Solutions (General) Ltd v Valle De Uco Resort & Spa SA [2013] EWHC 333 (QB), per Cranston J at [8].

This third factor – the risk of dissipation so that the judgment risks going unsatisfied – is generally the most difficult. A freezing injunction does not give the claimant any proprietary interest in the frozen assets, and will not be granted merely to provide quasi-security for a claim that might otherwise prove difficult to enforce because the defendant’s assets are in a remote place or likely to prove insufficient over time to meet a judgment. Rather, the disposition allegedly threatened must be something outside the defendant’s ordinary course of business or living, and likely to have the effect that the judgment will not be met. See TTMI Ltd of England v ASM Shipping Ltd of India [2005] EWHC 2666 (Comm), at [25] per Christopher Clarke J. Different cases adopt slightly different language to express this, referring to dispositions that are “in a manner clearly distinct from [the respondent’s] usual or ordinary course of business or living” (Third Chandris Shipping Corp v Unimarine [1979] QB 645 at 669 per Lord Denning MR), or “other than in the ordinary course of business” (Laemthong International Lines Co Ltd v ARTIS [2004] EWHC 2226 (Comm); [2004] 2 All ER (Comm) 797, per Coleman J at [54]), or “unjustifiable” (Ketchum International v Group Public Relations Holdings [1997] 1 WLR 4, per Stuart Smith LJ at 10; Congentra v Sixteen Thirteen Marine SA (The “Nicholas M”) [2008] Lloyd’s Rep 602 at [49]), but the contexts in each case indicate the meanings are aligned. The real difficulty is usually whether the facts support such a conclusion.

Finally, if the requested freezing injunction is in aid of foreign rather than domestic proceedings, and is ordered pursuant to section 25(1) of the Civil Jurisdiction and Judgments Act 1982 and the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997, then the court must consider, first, whether it would be appropriate to grant the order if the substantive proceedings were taking place in England (Refco Inc v Eastern Trading Co [1999] 1 Lloyd’s Rep 159), and, secondly, whether the fact that the substantive proceedings are taking place overseas renders it inexpedient to grant the freezing order. In assessing whether it is “inexpedient”, the principal considerations were summarised in Motorola Credit Corp v Uzan (No 2) [2004] 1 WLR 113 at [115], and might be summarised still further in the present narrower context (where the foreign court has clear jurisdiction in relation to the foreign proceedings, and the assets in question are located entirely in that foreign jurisdiction) as suggesting it would be inexpedient to grant such an injunction where that would be in conflict with the primary jurisdiction’s policy against such injunctions, or would interfere with the primary court’s own management of the case, or where the national court would be making an order which it cannot enforce.

Injunction in aid of foreign proceedings

Perhaps oddly, I shall start with the request for a freezing injunction in aid of foreign proceedings, being Richard’s request that the proposed injunction protect not only any judgment and costs orders in his favour in the partnership dissolution but also the predicted costs order in his favour in the Jersey proceedings relating to the Longton shares. Robert did not dispute that Richard had at least a good arguable case to such a costs order, having won the case. Moreover, by the time of the hearing (and only for the purposes of this hearing) Robert did not suggest that the anticipated quantum of £800,000 was unarguable, although he had suggested this earlier. It follows that if it would otherwise be appropriate to grant the freezing injunction if these substantive proceedings were taking place in England (as to which see the discussion below on assets available and the risk of dissipation), then a freezing order might equally be granted in aid of the foreign proceedings unless the overseas context renders it “inexpedient” to grant the order. Richard’s counsel took me through each of the particular considerations set out in Motorola Credit Corp v Uzan (No 2) [2004] 1 WLR 113 at [115] (see above) showing that all were met rather straightforwardly in the present context, and adding that it would indeed be inexpedient to force Richard to make a second and separate application in Jersey in respect of the proportion of the claim which relates to the costs likely to be awarded in Jersey. I accept this, and accordingly am satisfied that, if the freezing injunction is warranted at all, then it should also protect Richard’s anticipated costs order in the Jersey proceedings. Robert’s counsel did not contest that conclusion.

Injunction in aid of domestic proceedings

As to the requirements in relation to freezing injunctions in aid of domestic proceedings, Robert had substantially conceded the first two requirements by the time of the hearing: i.e. a good arguable case on the merits of the substantive claim, and sufficient assets to be subjected to the order. On the first requirement, the terms of the Main Order are such that it is clear that Richard has at least a good arguable case that the winding up of the partnership will take place in the manner suggested by the judge, and so will require an equalising payment in Richard’s favour. The fact that Robert may apply to court to review and vary this proposal does not negate Richard’s “good arguable case”. Further, for the purposes of this hearing Robert has not contested the quantum of the sums that might be due. The result is that Richard has a good arguable case that a substantial sum (he puts it at £8,338,127) will be due to him by way of equalisation payment and various costs orders (including the Jersey costs).

On the second requirement, Robert clearly has such assets. Robert’s own evidence indicates that he has less than £10,000 in the English jurisdiction and his only disclosed substantial asset is his beneficial interest in the Longton shares.

Risk of dissipation so that the judgment risks going unsatisfied

That leaves the third requirement. In argument, Richard focused on the risk of dissipation, leaving the associated risk that any judgment would not be met to speak for itself. By contrast, Robert suggested the test was not a composite one, but required separate proof of each of the two aspects. Accordingly, Robert denied that there was the necessary risk of dissipation, or, further, that any such dissipation would carry the risk that the judgment would not be met. I regard both aspects as important, and deal with both below. In most contexts, however, proof of the necessary risk of dissipation will inevitably carry with it proof of the risk the judgment will go unsatisfied.

The uncontested facts indicate that Robert intends to dispose of his Longton shares and use the proceeds to meet his legal fees (estimated at £2,500,000) and perhaps remit the remaining sums (anticipated to be over £8,000,000) to Thailand where he has lived for decades. Robert advanced no evidence, and nor would there seem to be any, that use of these remaining sums would simply form a seamless part of his ordinary course of business or living. That opens the issue of whether these remaining proceeds are at risk of being inappropriately dissipated (using that term merely as shorthand for “not in the ordinary course of business or living” or “unjustifiable” – see earlier) with the effect that any judgment may not be satisfied. This remains the test even when the assets are outside the jurisdiction: Derby & Co Ltd v Weldon [1990] Ch 48.

On the issue of the risk of dissipation, Richard’s primary case was that the court could infer a risk of dissipation from the facts that (i) Robert lives in Thailand, and thus it is likely he will transfer the proceeds of any sale overseas, making it likely to be difficult or impossible for Richard to locate the funds after the event; (ii) Robert has a motive for doing this, given his “manifested all-pervading antipathy for Richard” (as found by Mr Rosen QC, judgment para 41 and also see para 124); and (iii) his past behaviour is indicative of his future behaviour, and in the past, as Mr Rosen QC found, he had committed several “striking” breaches of duty aimed at placing partnership assets beyond Richard’s control and appropriating their benefit for himself. The suggestion of motive in (ii) was put as going to the level of risk, not to any need to prove some nefarious intent, that being unnecessary. There was the further suggestion that Robert’s current behaviour is the same mould, evidenced by a continuing practice of resisting proper disclosure so as to hide the true net asset position of the entities under his control. I have ignored that faintly urged suggestion since it relates to the contested valuation of the entities, which was withdrawn from consideration at the hearing before me.

Robert resisted this assessment of the facts on the basis that (i) no adverse inferences could be drawn from the fact that Robert may move the sale proceeds to Thailand where he has lived for decades and where Richard has offered no evidence that enforcement in Thailand (or elsewhere) would be difficult or impossible; (ii) there is no evidence to suggest that Robert would dissipate his assets to frustrate a judgment against him; and (iii) Robert has other assets that can be used to meet any judgment claim.

I consider first the consequences that might follow merely from Robert’s intention to transfer his sale proceeds overseas. Both parties took me to Stephen Gee QC, Commercial Injunctions (6^th ed 2015) (“Gee”), para 12-030. I have now read the judgments referred to in that paragraph. Most of the cited authorities are Australian and Canadian, but the principle advanced by them appears uncontroversial. The point they make is that freezing injunctions are directed at the risk of inappropriate dissipation, so no question of an injunction can arise where the defendant’s proposed transfer of assets overseas is in the ordinary course of business or living. That test may be quite tough, however. Gee cites only one decision where an injunction was refused on this basis, being a case where the intended transfer of assets was in train before the liability underpinning the substantive claim had arisen: Di Menza v Richardson Greenshields of Canada Ltd (1989) 74 OR (2d) 172. Where, however, the transfer is not in the ordinary course of business or living, then an intended transfer to an overseas jurisdiction may provide sufficient basis for an injunction once the court considers its effect on whether the judgment will be met. The hurdle does not appear overly onerous. Gee, at paragraph 12-030, cites Stronghold Insurance Co Ltd v Overseas Union Insurance [1996] LRLR 13, [1995] CLC 1268, a judgment of Potter J upholding the grant of a freezing injunction against a substantial Singaporean company carrying on an insurance business in that country and wanting to transfer assets from London where it had no continuing business.

It was not suggested that the possible transfer by Robert of over £8,000,000 to Thailand or other overseas jurisdictions can be regarded as in the ordinary course of business or living. Given that, the authorities noted in the previous paragraph suggest the proposed overseas transfer could of itself raise sufficient risks to warrant an injunction. That would need testing. But Richard’s evidence goes much further than that.

The principal plank in Richard’s proof of the risk of inappropriate dissipation by Robert was the simple fact of Robert’s past practices. In particular, in the partnership dissolution proceedings the trial judge had found Robert to be in breach of his partnership duties over an extended period of years precisely because he had appropriated to himself Richard’s share of the partnership assets (being the shares in the Thai and BVI companies), putting those assets legally and practically beyond the control of Richard by transferring many of the shares to third parties, principally his wife and family (see above, para 14). If that could be done with the shares in which Richard had a beneficial interest, then it was urged that there was a real risk it would also be done, to equally detrimental effect, with cash proceeds beneficially owned by Robert. I find that a compelling argument.

Robert’s response was that past behaviour is not necessarily a good predictor of future behaviour. In particular, it was suggested that evidence as to Robert’s past behaviour had been overtaken by Robert’s behaviour during the proceedings themselves. In particular, he had complied with all the orders made by the trial judge and others, and there was no reason to believe that he would not comply with any orders made for him to compensate Richard for any breaches of partnership duties. But compliance with court orders merely indicates that Robert will likely comply with any freezing junction ordered by this court. It does not negate the risk of dissipation in the absence of a court order: see Ras Al Khaimah Investment Authority v Bestfort Development LLP [2017] EWCA Civ 1014 at para 54 per Longmore LJ (with whom Henderson and Elias LJJ agreed). Moreover, it adds nothing to suggest that Robert will comply with any orders made for him to compensate Richard for any breaches of partnership duties. The point of this application is to assess whether that order, if made, needs protecting to ensure there are assets to satisfy its execution.

The risk of dissipation must be shown by “solid evidence”: Ninemia Maritime Corporation v Trave Schiffahrtgesellschaft MBH und Co KG (The Niedersachsen) [1983] 2 Lloyd's Rep 600, 606-607 per Mustill J. All the facts that might be laid out in support are invariably context sensitive, but the short point is that they must justify the inference of a risk of dissipation: Thane Investments Ltd v Tomlinson [2003] EWCA Civ 1272 at [26]-[28]; Gee, para 12-033. I am persuaded that Richard has made out the required level of risk of unjustified dissipation, doing so principally by relying on the trial judge’s assessment of Robert’s past behaviour in the context of managing their partnership assets.

But that is not quite the end of the matter. Robert suggests that even if the Longton share proceeds were dissipated, there is not the necessary risk that a judgment in the partnership dissolution proceedings will go unsatisfied. This is because, Robert argues, he would be willing and able to assist Richard in securing a 50% interest in the Thai and BVI shares from their current owners, and would use his influence to secure this result. This would then enable any judgment to be met. I am not persuaded by this. Indeed, it seems a rather astonishing about-face when judged against the various conclusions reached by the trial judge in the partnership dissolution proceedings. If Robert could insist on this transfer, then his main assets would not be restricted to his Longton shares. He has not suggested he could insist on it, and nor is there anything in the trial judge’s findings to support likely co-operation by the third party owners; indeed, quite the contrary: see Mr Rosen QC’s judgment, especially paras 118, 124, 125, 127, 137, 145, 159. No appeal was permitted from these findings, and they were made with the benefit of a good deal of evidence and an assessment of the witnesses in person. They thus provide evidence that might justifiably be relied upon in this application.

But even assuming Robert had the power to deliver these proposed ends, and could demonstrate the assets would have the necessary financial value, no evidence was given that he would indeed do so voluntarily. The evidence on recent compliance with court orders does not assist (see above, para 38). Rather, inferences to the contrary are implicitly carried by Richard’s proof of the risk of dissipation, considered earlier. This risk of dissipation is not in its terms limited to the Longton shares, other than in the practical sense that they are Robert’s only asset of value.

In short, I find on the arguments put to me that the claimant, Richard, has shown that there is a real risk that the defendant, Robert, will dissipate his assets other than in the ordinary course of business or living, such that there is a real risk of a judgment in Richard's favour going unsatisfied if the injunction over the Longton shares is not granted.

I turn next to the balance of convenience, to the extent it may require particular comment. Any suggestion that some alternative to an injunction might more conveniently be adopted is both explicitly and implicitly addressed in my consideration of Robert’s own proposals for meeting any judgment order (see above, paras 40-41).

I note too that Richard’s Longton shares are also the subject of a court order, and will remain so, thus ensuring Robert’s position in the partnership dissolution proceedings is amply protected.

Finally, the point that freezing injunctions are not to be awarded to provide security for a likely judgment claim might seem at risk when the injunction is ordered in relation to a single identifiable asset, here a parcel of shares in Longton. But the short answer is that protection of the claimant by a freezing injunction, if warranted, does not extend so far as to give the claimant priority to the frozen assets or their proceeds should the defendant become insolvent.

There is some dispute over the precise terms of the order to be granted. I hope that dispute might be resolved by consent with an order that imposes the minimum constraints needed to fully protect the risks that the court accepts do exist.

For the reasons given, I consider that a freezing injunction over Robert’s beneficial interest the Longton shares and their proceeds is warranted, the precise terms yet to be settled.