Ramesh Philippe Dusoruth v Orca Finance UK Limited (in liquidation)

Mr Ramesh Dusoruth was adjudged bankrupt on 16^th November 2020 on a petition presented to this court by Orca Finance UK Limited (in liquidation) (“Orca UK”) on 1^st October 2020. On 7^th June 2021 Mr Dusoruth applied to annul that bankruptcy order under section 282(1)(a) of the Insolvency Act 1986 (“IA 1986”), that is to say on the ground that it ought not to have been made (“the Annulment Application”). The application was supported by a statement from Mr Dusoruth’s solicitor, Mr Mohammed Qaiser Khanzada, of the same date and that statement was later supplemented by a statement from Mr Dusoruth himself, dated 3^rd August 2021. The Annulment Application also sought to set aide the order dated 12^th October 2020 permitting the petition and associated documents to be served on Mr Dusoruth out of the jurisdiction (“the Service Out Order”) or permission to appeal that order.

Mr Dusoruth’s case, as it appears from those documents, is that, first, the debts set out in the petition were not for liquidated sums. They were thus incapable of founding a bankruptcy petition so that the petition and the statutory demand that preceded it were, as the Annulment Application puts it, “irredeemably defective”. Secondly, he says that his centre of main interests (“COMI”) for the purposes of the Regulation (EU) 2015/848  of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (“the recast EU Regulation”) was not in England and Wales at the relevant time and the court had no jurisdiction to make a bankruptcy order in respect of him. Finally, he contends that the petition debts are disputed. The reason that he did not raise any of these issues in advance of the bankruptcy order being made was because he had not been aware of the proceedings until he was informed of the making of the order itself on or about 16^th December 2020.

Orca UK’s evidence in answer to the Annulment Application is contained in a statement from Detective Inspector Paul Ridley of the Bermuda Police Service, dated 12^th November 2021, and a statement from Mr Paul Appleton, the joint liquidator of Orca UK and joint trustee in bankruptcy of Mr Dusoruth, dated 16^th November 2021. Mr Dusoruth at first appeared to intend to reply to those witness statements and his evidence in reply was to have been filed by 26^th October 2021. The parties agreed to vary the directions timetable and Mr Dusoruth then obtained a further extension to file his reply evidence by 7^th December 2021. On 6^th December 2021 he applied for an order for extending time for filing that reply evidence to 7^th February 2022 but abandoned that application and did not file any further evidence.

On 1^st February 2022, Orca UK made an application for an order that Mr Dusoruth attend the hearing of the Annulment Application to be cross-examined. That was granted by Deputy ICC Judge Agnello QC on 21^st April 2022, though she directed that the scope of cross-examination, in particular whether it be limited to questions relating to Mr Dusoruth’s COMI or extend beyond that issue to explore Mr Dusoruth’s contentions as to the dispute as to the debts, should be determined at the hearing of the Annulment Application.

Mr Dusoruth did indeed attend the hearing for cross-examination but, with my permission, by video link rather than in person. He is currently in the Netherlands having been convicted of an offence of “bankruptcy fraud” by the Overijssel Criminal District Court on 12^th October 2021. He was sentenced to 30 months in prison, which was extinguished by time already served. Mr Dusoruth contends that this conviction is subject to appeal and it seems that his acquittal on further fraud and forgery charges is subject to an appeal by the public prosecutor. He is required to remain in the Netherlands. Further, Mr Dusoruth was, until 8^th March 2019, on bail in Bermuda having been charged with a number of offences by the Bermuda Monetary Authority (“the BMA”) but left that jurisdiction in the rather extraordinary circumstances that I shall describe. As far as the Bermudan authorities are concerned he absconded in breach of his bail conditions, with the result that he is the subject of an Interpol Red Notice. The effect of all that is that if he were to leave the Netherlands he would not only be in breach of his bail conditions in the Netherlands but also be liable to arrest and extradition to Bermuda.

The final point I should note in relation to the progress of the Annulment Application is that, on the day after the hearing before Deputy ICC Judge Agnello QC, leading counsel for Orca UK who had been retained for the substantive hearing before me and had, I think, represented it at all previous hearings, had to withdraw unexpectedly for entirely understandable and unavoidable personal reasons. With only a matter of days to go before the hearing of the Annulment Application, the solicitors for Orca UK asked Mr Dusoruth’s representatives to agree to an adjournment. That request was refused. Mr Lance Ashworth KC and Mr Wilson Leung of counsel were therefore instructed at short notice and were able to appear for Orca UK at the hearing, as well as to provide a full skeleton argument in time for the pre-hearing reading day. I am very grateful to both of them for enabling the hearing to be effective.

Mr Dusoruth’s business interests are wide-ranging. He holds 99.9% of the share capital of Les Petits Fourmies (“LPF”), a company registered in Malta, and is acknowledged in its filings in that jurisdiction as its ultimate beneficial owner. LPF is the owner of the issued share capital in –

Marsh Wall Jersey and PSSI respectively held property at 30 Marsh Wall, London E14 9FY (“the Marsh Wall Property”) and four apartments that formed part of a house at 66/66a Pont Street, London SW1X 0AE (“the Pont Street Properties”) until 2017, when the properties were “on-shored” by the transfer of the Marsh Wall Property into the ownership of Marsh Wall UK and the Pont Street Properties into the ownership of the Pont Street Companies. These properties have since been sold by receivers. The sale of the Pont Street Properties completed on 13^th December 2019 for £9.5 million and the Marsh Wall Property on 20^th December 2019 for £26.65 million.

Orca UK’s winding up happened as follows. On 7^th March 2019, Rachelle Frisby and John Johnson were appointed as joint provisional liquidators of St George’s by the Supreme Court of Bermuda. The evidence of Ms Frisby, dated 28^th June 2019, in support of an application for the appointment of provisional liquidators in respect of Orca UK sets out how that came about. In summary, it is alleged that St George’s procured investments from wealthy individuals, which investments were transferred to other companies controlled by Mr Dusoruth by way of unsecured loans. These loans are thought by the Bermudan joint provisional liquidators to have been used to repay lending incurred in relation to the purchase of the Marsh Wall Property and the Pont Street Properties. St George’s auditors raised concerns as to the recoverability of these loans in 2017 and, at around this time or in 2018, the BMA became involved. Mr Dusoruth and his co-director Mr Vincent Mast, were arrested on 15^th November 2018 and charged with various offences, including in Mr Dusoruth’s case, providing misleading information to the BMA.

The appointment of Ms Frisby and Mr Johnson as joint provisional liquidators of St George’s followed the presentation on 27^th February 2019 of a petition to wind up St George’s by Harbour International Trust Company Limited in Bermuda. St George’s presented a petition for the winding up of Orca UK in this jurisdiction on 5^th June 2019, based on an unsatisfied demand for repayment of an intercompany loan in the sum of $1.35 million. On 14^th June 2019, Ms Frisby and Mr Johnson made an application for recognition of their appointment here. The application for recognition was heard and granted by me on 28^th June 2019.

Mr Appleton and Mr Paul Cooper were appointed as joint provisional liquidators of Orca UK on 12^th July 2019 and were appointed as joint liquidators following the order for the compulsory liquidation of that company on 24^th July 2019.

The investigations of the liquidators of Orca UK led them to cause it to present the bankruptcy petition against Mr Dusoruth. On the same day, Orca UK also made a without notice application (“the Service Out Application”) for a declaration that it had taken all reasonable steps to bring a statutory demand dated 5^th June 2020 to Mr Dusoruth’s attention, together with an order dispensing with personal service of the petition and giving permission for it to be served on Mr Dusoruth out of the jurisdiction in the Netherlands, where Mr Dusoruth was then being held pending his trial. That application was supported by the first witness statement of Mr Appleton, dated 30^th September 2020.

The Service Out Application was also accompanied by written submissions from leading counsel and Orca UK asked that the application be determined on paper on the basis of the evidence and submissions. It was referred to me in boxwork and, though I was satisfied on an initial review that it appeared that enough had been done to bring the statutory demand to the attention of Mr Dusoruth, I was not so satisfied as to COMI. Mr Dusoruth, as Mr Appleton’s evidence in support of the Service Out Application acknowledged, regularly travelled between London, Belgium and Bermuda and had interests in a number of jurisdictions, including in residential property in Belgium. Orca UK did not, however, rely on Mr Dusoruth’s residence but contended that he operated an independent business or professional activity and that London was his principal place of business. Orca UK, it was said, was Mr Dusoruth’s “pocket book” from which he took large sums to fund his family’s lifestyle and was the administrative hub for Mr Dusoruth’s business interests, carried on via the network of companies ultimately owned by him.

My concern was that some of the evidence relied upon as to this was historic, particularly in the context of a case where Mr Dusoruth had been in Bermuda for an indeterminate period prior to his arrest and did not address the effect of Mr Dusoruth having been on bail there for several months, immediately followed by spending over a year in prison in the Netherlands, where he remained detained.

The Service Out Application was therefore listed on 12^th October 2021, as it so happened before me once again. Having received further written submissions and heard from leading counsel then instructed I was satisfied for the purposes of the Service Out Application that Mr Dusoruth’s principal place of business from which his affairs were administered was London. I therefore granted permission to serve him out of the jurisdiction and directed that he could apply to set aside the order within seven days of it being served upon him.

That hearing was listed to consider my concerns over COMI but the Service Out Application, as required by rule 6.37(1) of the Civil Procedure Rules, asserted that Orca UK believed that the petition had a reasonable prospect of success. Neither the Service Out Application, the evidence in support, the initial written submissions, the supplemental written submissions nor the oral submissions engaged with the question of whether the petition debt was a liquidated sum, beyond stating that it was. In the paragraphs appearing under the heading “Full and frank disclosure on the merits” in Mr Appleton’s first witness statement this question does not feature among the fifteen arguments that it is said Mr Dusoruth might seek to raise in response to the petition.

Following that hearing, Orca UK lodged evidence of service of the petition, the Service Out Application, the Service Out Order and associated documents in the form of a witness statement of Mr Jurgen van den Heuval, a Dutch lawyer, dated 6^th November 2020. His evidence was that he instructed a court bailiff to attend the prison in which Mr Dusoruth was detained. He confirmed that the documents had been served in accordance with my order and that such method of service was good under Dutch law. He exhibited a copy of the original Dutch certificate of service with an English translation. Mr Dusoruth did not apply to set aside the Service Out Order, nor did he respond to the petition at all. The petition came before Deputy ICC Judge Schaffer on 16^th November 2020 and he made the bankruptcy order.

Mr Dusoruth’s discharge from bankruptcy was suspended by an order made on 5^th November 2021. The evidence in support of the application to suspend was again given by Mr Appleton and set out a prolonged failure to provide information repeatedly requested over the course of about 10 months. Mr Dusoruth did not file evidence in answer to that application but was represented by Mr Brown of counsel at its first hearing, who also appeared for him on the hearing of the Annulment Application. Deputy ICC Judge Schaffer was satisfied, in the absence of any answer from Mr Dusoruth, that he had failed to provide the trustees with information as to his affairs and directed that his discharge from bankruptcy be suspended until the determination of the Annulment Application.

There are two elements to the petition debt. The first is the sum of €361,899.73 in relation to the payments that Orca UK’s liquidators have identified as being made from Orca UK’s bank accounts which, they say, discharged Mr Dusoruth’s personal American Express credit card bills (“the American Express Debt”). The American Express statements were recovered from Orca UK’s offices and were addressed to Mr Dusoruth at its former office address at Pont Street. By way of illustration, the expenditure shown on one of these statements alone, dated 26^th August 2018, includes €32,000 spent at Hermès, New York, in July 2018, a family trip to New York, Boston, Niagara Falls, Toronto and Vancouver, together with expenditure on restaurants, hotels, and sportswear and other shops. The sums due under that statement, totalling €84,701, are said to have been discharged by Orca UK. Mr Appleton’s evidence is that he is unable to identify a single business expense.

Mr Dusoruth is further said to have caused Orca UK to pay the rent on Flat 3, 9A Curzon Street, London W1J 5HQ (“Curzon Street”) in the total sum of £276,838.01 between 16^th March 2016 and 13^th February 2019 (“the Curzon Street Debt”). Curzon Street is said to have been used by Mr Dusoruth and his family, rather than for the benefit of Orca UK. It is not clear from the information obtained by the liquidators whether the lease was in the name of Orca UK or Mr Dusoruth himself. No lease has been found and the rent demands that the liquidators have refer to both Mr Dusoruth himself and Orca UK.

Section 282(1) IA 1986 provides, insofar as is material:

Section 264(1) IA 1986 deals with who may present a bankruptcy petition as follows:

In this case, the dispute raised by Mr Dusoruth is that the repayment of the American Express credit card liabilities were legitimately made pursuant to a consultancy agreement dated 27^th March 2015 (“the Consultancy Agreement”) made between LPF, Brazz and Orca UK, whereby fees due to Brazz for services supplied by Mr Dusoruth could be discharged by the payment of Mr Dusoruth’s personal expenses. In relation to the Curzon Street Debt, he says that he stayed at Flat 2, 66a Pont Street and had no need to use Curzon Street. It was instead used exclusively by Orca UK’s consultants and the rent constituted a proper business expense.

Counsel were not agreed as to whether it remained sufficient on an annulment application for the bankrupt to raise a genuine triable issue as to the existence of the petition debt, as Mr Brown contended, or whether it was necessary to go further and show, on the balance of probabilities, that the petition debt was not due at all, as argued by Mr Ashworth. It was necessary for me to give a ruling on this in the context of Mr Ashworth’s wish to cross-examine Mr Dusoruth on the dispute as to the debt.

Counsel were content for me to give my reasons in this judgment. In the event, I gave a brief ex tempore judgment at the time, which I shall expand upon here, and this part of my judgment constitutes my reasons for that decision. I concluded that Mr Brown was correct as to the test that his client had to meet. As I said at the time, I will extend the period for applying for permission to appeal on this question so as to run from the hearing to consider consequential orders following the handing down of this judgment.

Mr Brown relied, first, on Guinan v Caldwell Associates Ltd [2004] EWHC 3348 (Ch), in which the bankrupt contended that he had not been properly served with the bankruptcy petition and that the debt was disputed on substantial grounds. The district judge rejected both arguments and the bankrupt appealed. Neuberger J, as he then was, allowed the appeal, accepting that there was no distinction between the test to be applied on an application to set aside a statutory demand, at the hearing of a petition and on an application to annul. In each case the court must consider whether the debt is genuinely disputed. He said:

Mr Ashworth, noting that Neuberger J’s judgment was based on a concession by counsel, invited me to follow the decision of Mr Anthony Elleray QC, sitting as a deputy High Court Judge, in Flett v HM Revenue and Customs and Daly [2010] EWHC 2662 (Ch). In that case, HMRC had obtained judgment for the sums set out in its own determinations and assessments as to the tax-payer’s liability. He was subsequently adjudged bankrupt. He applied to annul on the basis that he had been unaware of the petition, at least one of the determinations had been displaced by a return filed before the presentation of the petition and his liability had subsequently been reduced to nil following the provision of returns to displace further determinations and a payment made shortly after the bankruptcy order.

The district judge did not accept that the relevant return had been filed before the presentation of the petition and declined to annul the order. The deputy judge dismissed the taxpayer’s appeal. He said:

In Re Payne; Woolsey v Payne [2015] EWHC 968 (Ch), Mr John Male QC, sitting as a deputy High Court Judge, considered an appeal from the Chief Registrar. He was referred to both Guinan and Flett and said:

I cannot accept Mr Ashworth’s submission that Mr Male was bound to follow Flett on the basis that it is was decided subsequently to Guinan following full, or at least fuller, argument. It is quite clear that Mr Male was well aware that the point had not been fully argued in Guinan. That is apparent from paragraph 21 of his judgment. It also appears that Guinan was not cited to Mr Elleray in Flett and, in any event, he was dealing with a different situation. There the petition was based on judgments for the statutory debt that was due at the time of the order, albeit that HM Revenue and Custom’s assessments were displaced by returns thereafter and a payment was also made. That cannot have altered the fact that the debt was due as at the date of the order. Mr Elleray’s observations were made in context – that is quite clear from the fact that he uses those words in paragraph 46 of his judgment. One can see that, in that context, it might be said to be necessary for the taxpayer to show that the statutory debts had been extinguished by the filing of nil returns and payment when the order was made. That was not the position in Payne nor is it the position in this case.

I consider that I am bound to follow Mr Male’s approach, with which I respectfully agree. Section 282(1)(a) IA 1986 requires me to consider whether “on any grounds existing at the time the order was made” the order ought not have been made. If, at the time the order was made, there was a genuine triable issue as to existence of the debt, it seems to me that the order could not have properly been made. It would strange if, say, a debtor who did not become aware of an ordinary trade creditor’s petition until the day after the bankruptcy order was made had to meet a more stringent test than he or she would have faced the day before.

This does not mean that the order will be annulled. The court retains a discretion to decline to do so, save where the order was made without jurisdiction, the meaning of which I shall return to later, and a bankrupt who has ignored the petition and unreasonably delayed making the application may find that he or she has an uphill task in persuading the court to annul.

As a coda to the discussion of the test I should say that, while the cases traditionally use the expressions “genuine triable issue” or “genuinely disputed on substantial grounds” when approaching a challenge to the existence of the debt, there is no material difference between those concepts and that of a “real prospect of success” familiar in the context of summary judgment applications. It means more than a fanciful prospect of success or a merely arguable dispute. There must be something to suggest that the dispute is sustainable, beyond mere assertion. The court does not conduct a mini-trial but may reject evidence that is inherently implausible or contradicted, or not supported, by contemporaneous documents (see Collier v P & M J Wright (Holdings) Ltd [2007] EWCA Civ 1329 at paragraph 21, per Arden LJ).

The court must take a realistic approach to the assessment of the merits and be alive to the risk that a debtor will seek to raise what has been described in the context of corporate insolvency as “a cloud of objections”. The timing of an application may be of relevance not only to the exercise of a discretion to annul but also to the court’s assessment of the case the debtor seeks to advance. Where the bankrupt has been inexplicably dilatory in identifying the dispute upon which he relies or in producing documents in support of it the court is, in my view, entitled to weigh the dispute against that background. That does not alter the test that the bankrupt has to meet but inevitably will inform the assessment of the substance of the dispute that the bankrupt seeks to raise.

The second element of the requirements for presentation of a petition is set out in section 265 IA 1986 and specifies the persons against whom a bankruptcy petition may be presented. At the time of presentation it provided as follows, as far as relevant:

At the dates of the presentation of the petition and the bankruptcy order the United Kingdom had left the European Union. Article 67(3)(c) of the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (“the Withdrawal Agreement”) provided for the continued application of the recast EU Regulation during an implementation period, which came to an end on 31 ^st December 2020. The relevant parts of the recast EU Regulation applicable at the time of presentation of the petition and the bankruptcy order were as follows:

Article 3 provided:

The principles applicable to the substantively identical predecessor regulation were summarised by Judge Purle QC, sitting as a High Court Judge, in Sparkasse Hilden Ratingen Velbert v (1) Benk (2) The Official Receiver [2012] EWHC 2432 (Ch), at paragraph 22, as follows:

Finally, Mr Dusoruth argues that the petition is defective in that it does not comply with section 267 IA 1986 as follows:

I have explained the procedural history and the scope of the dispute between the parties. Deputy ICC Judge Agnello QC left the question of the scope of cross-examination to me in her order of 21^st April 2022. There was no doubt that it was to include the question of COMI, and cross-examination on that issue is not unusual. Cross-examination where service of proceedings is disputed is similarly relatively common. Mr Ashworth cross-examined Mr Dusoruth on both and, having concluded that exercise, wished to question him as to the disputes raised as to the petition debts, which is extremely unusual and was opposed by Mr Brown. In this case I allowed cross-examination, and, again, I gave my decision in summary form at the time, which I explain below. Again, I extended time for applying for permission to appeal that decision to run from the hearing to consider consequential matters following handing down of this judgment.

Mr Brown emphasised that cross-examination on the question of whether a debt is disputed is very rare. He took me to Hayes v Hayes [2014] EWHC 2693 (Ch) in which Nugee J, as he then was, described the practice of the court as follows:

Mr Brown further cautioned me with the words of Neuberger J in Guinan as follows:

Rare though it is to permit cross-examination on the question of a disputed debt it is not impermissible and it is ultimately a case management decision. While Mr Dusoruth has to show a genuine dispute as to the debt, and that test is the same whether considered prior to the bankruptcy or an annulment, these disputes are being considered long after the bankruptcy order was been made. I bore in mind that the effect of an annulment so long after the making of the bankruptcy order has the potential to affect the rights of the creditors as a class. For this reason, a court should not annul a bankruptcy order without investigation (Housiaux v HM Customs & Excise [2003] BPIR 858 at paragraph 25, per Chadwick LJ).

Secondly, this is a wholly exceptional case. Mr Dusoruth has been found guilty of an offence described as “bankruptcy fraud” in the Netherlands and Mr Ashworth, in cross-examining him on the question of COMI, did not seek to lull him into a false sense of security. He said at the outset of his questioning that he would be putting to him that he was a serial liar and fraudster. It appeared to me to be artificial to seek to put out of my mind the wholesale attack on Mr Dusoruth’s credibility in the context of COMI when considering the question of the disputed debt. Mr Dusoruth chose not to file evidence in reply to Mr Appleton’s third witness statement in order to address the challenges made to the assertions in Mr Dusoruth’s statement in support of the Annulment Application, in particular in relation to the sudden production of documentary evidence. It appeared to me to be fairer to allow Mr Dusoruth to answer the criticisms of his evidence on the debts head on. I bear in mind the dangers of one party being cross-examined without the benefit of disclosure and without witnesses for the petitioner similarly being cross-examined. I also keep in mind the low threshold that Mr Dusoruth has to meet in respect of the dispute on the debt and that it is not the function of the court to conduct a mini-trial.

Here, of course, the other party to the proceedings is Orca UK, acting by its joint liquidators. Those office-holders have no direct knowledge of the affairs of Orca UK and are reliant on documents that they have obtained and an interview with Mr Green. It is not a case where one witness’s credibility must be weighed against another’s. Their case in relation to the alleged dispute is principally directed to the paucity of the evidence produced by Mr Dusoruth and its production late in the day. In reality, as Mr Ashworth accepted, cross-examination was of limited value. Many of the points put to Mr Dusoruth as to the inadequacies of his evidence could equally have been raised in submissions but cross-examination gave him the opportunity to address the petitioner’s case on those inadequacies. In my judgment, Mr Dusoruth was at no disadvantage in being given the opportunity to address the points raised by Mr Ashworth.

Mr Dusoruth was not an impressive witness. He was evasive, failed to engage with questions and repeatedly sought to place reliance on legal advice to explain gaps in his evidence, such as:

Many of his answers were simply extraordinary. In the first part of his cross-examination on COMI, Mr Ashworth questioned him on the circumstances of his departure from Bermuda following being charged with various offences of dishonesty. The account of this is given by Detective Inspector Ridley and Mr Dusoruth has filed no evidence to challenge it.

Mr Dusoruth and Mr Mast were arrested on 15^th November 2018. On 16^th November 2018 Mr Dusoruth was granted conditional police bail, which provided that he was not to leave Bermuda, that he was to “surrender passports” and to notify police of any change of address whilst on bail. Those conditions concluded with the following statement:

He was charged on 13^th February 2019 with the following offences:

Nonetheless, he left Bermuda on 8^th March 2019, in the company of Mr Green, by an aeroplane privately chartered at a cost of €50,000. According to DI Ridley, enquiries of provider of the aeroplane yielded the response that “the client” had requested “the engines were to be started and ready to go, in time for the final passenger, who was described as ‘the boss’, who would arrive and board the aircraft with zero delay”.

Mr Dusoruth’s flight from Bermuda was made using a replacement British passport. The passport that he had surrendered to the police was due to expire on 3^rd March 2019. The Bermudan police released it to his Bermudan lawyers for the purposes of renewal, on the condition that the expired passport and its replacement would be sent to those lawyers for onward transmission to the police. Mr Dusoruth’s bail conditions required the surrender of “passports” in the plural. The expiring passport was sent to HM Passport Office with letters from both Mr Dusoruth’s lawyer and the Bermudan Police making it clear that the new passport was to be sent to the lawyer and not to Mr Dusoruth directly.

It appears from DI Ridley’s evidence that someone calling himself Ramesh Dusoruth contacted the Passport Office on 25^th February 2019 saying that he was now resident in Antwerp and asking for the passport to be sent there. How it then found its way back to Bermuda to allow Mr Dusoruth to use it is not entirely clear but it is alleged by DI Ridley that it was brought to Bermuda by Mr Green, who arrived in Bermuda on 7^th March 2019. Mr Dusoruth denied that he had arranged this. His case was that the passport appeared at the reception of his hotel in Bermuda on 7^th March 2019 and that he understood from his lawyer that he could leave. He said that he was given to understand that he had been given his “marching orders”, though he later expressed this as “his marching orders not to do business in Bermuda”. He accepted that his lawyer did not tell him in terms that he could leave Bermuda but that had been his interpretation of the conversation.

Mr Dusoruth did not put in any evidence in answer to this account and did not seek to cross-examine DI Ridley. His position was that he did not know how his new passport appeared at his hotel and that he innocently believed himself to be free to go following his conversation with his lawyer. One only needs to have set out the sequence of events to see that Mr Dusoruth’s account is wholly incredible. No plausible explanation has been given for the appearance of his passport in Bermuda, it having been sent to Antwerp. The only realistic explanation is that this was arranged by persons acting on his behalf, as was the private aeroplane ordered to be standing on the runway ready to take him away, which arrived on the same day as Mr Green and his new passport.

To suggest that Mr Dusoruth believed himself to be free to go stretches credulity beyond breaking point. He had been charged with serious offences of dishonesty and required to surrender his “passports”. A new passport appeared, and he fled the country on the following day, avoiding the additional risks of detection occasioned by taking a commercial flight, without any confirmation from the police that the charges had been dropped or that his bail conditions had been varied. Were this a genuine misunderstanding one might anticipate an honest person to surrender himself to the jurisdiction, but Mr Dusoruth is resisting the attempts of the Bermudan authorities to extradite him. In order to clothe this improbable account with any credibility at all one would expect evidence from his lawyer to confirm the possibility that he might have misunderstood his conversation with her, but Mr Dusoruth has chosen not to put in such evidence.

That is not the only apparent untruth in his evidence. He says in his first witness statement that:

This is particularly so in circumstances where Mr Dusoruth seeks to rely in opposition to the petition debt, insofar as it relates to the American Express Debt, on the Consultancy Agreement that he first produced to the liquidators of Orca UK in August 2021. This had not been produced in response to requests for information from his trustees. Mr Ashworth’s position was that Mr Dusoruth produces documents as the circumstances require and again points to proceedings in which Mr Dusoruth has been involved, which, though not directly linked to this petition, shed light on Mr Dusoruth’s credibility.

In this regard he cross-examined Mr Dusoruth as to litigation between Lioncross and a Dutch insurer called Delta Lloyd, and in particular a consultancy agreement allegedly entered into on 30^th November 2011. Mr Dusoruth alleges that Delta Lloyd stopped honouring its obligations to Lioncross in about 2014, as a result of which Lioncross commenced proceedings. Delta Lloyd’s response to the proceedings, according to Mr Dusoruth’s statement, was as follows:

It was also put to Mr Dusoruth that, on 12^th October 2021, Mr Dusoruth was convicted of bankruptcy fraud in the Netherlands. The finding was that he took $4.1 million from a company when faced with a claim from Delta Lloyd for $211 million. Mr Dusoruth disputed this, saying that the finding was that $22.4 million had been removed from the company and that $18 had been returned. There is no evidence of that.

Mr Ashworth took Mr Dusoruth to a penalty notice issued by HM Revenue and Customs, dated 12^th August 2019, directed to Marsh Wall UK, imposing a penalty of £4.7 million. The notice explained that a penalty included in HMRC’s consideration of the level of penalty was the behaviour of the director as follows:

Mr Ashworth’s reliance on this is twofold. First, he points to it as yet another example of Mr Dusoruth’s dishonesty. Secondly, he says that the existence of this debt goes to the exercise of the court’s discretion to annul the bankruptcy. I shall return to the latter point at the end of my judgment.

For the moment I should make it clear that the charges brought by the Bermudan authorities are currently unproven, the decisions of the Netherlands court are not binding on me and, while I cannot go behind HMRC’s tax assessment in so far as it creates a debt, its stance as to Mr Dusoruth’s knowledge in relation to a fraudulent input tax claim is no more than opinion evidence. Nonetheless, no objection was taken to their admissibility and Mr Brown accepted there were “considerable stains” on his client’s character.

The significance of the evidence put in from the petitioner as to the flight from Bermuda, the absence of any reduction in the amount regarded by the Bermudan police as having been abstracted from St George’s, the findings of the Netherlands Court and the decision of HMRC is that it was abundantly clear that Mr Dusoruth’s credibility was being called into question so as to seek to demonstrate that the assertions in his witness statement could not be relied upon without supporting documents sufficient to lend them credibility and that those documents themselves should be treated with caution where they emanated from Mr Dusoruth without corroboration of their provenance. Mr Dusoruth did not seek to provide any additional corroboration in the form of written evidence. Given what I have said about the extraordinary account given by him in relation to his flight from Bermuda, his general evasiveness and convenient reliance on undisclosed advice I cannot say that his oral evidence served to lend any further credibility to his case as to the disputed debt or in relation to COMI.

It is logical to start with the question of service of the petition. Whether Mr Dusoruth had knowledge of it informs my approach to the genuineness of the case he now advances and my approach to the exercise of any discretion that I might have as to whether it should be annulled. Mr Dusoruth’s evidence is as follows:

The evidence of Mr van den Heuvel in his witness statement dated 6^th November 2020 is that he instructed the court bailiff to serve on Mr Dusoruth, the petition, order for service, transcripts of the without notice hearing before me, my judgment of 12^th October 2020, and the written submissions prepared for that hearing on Mr Dusoruth at Penitentiary Institution Overrijsel – HvB Zwolle, Postbus 400033, 8004 DA Zwoll (“the Prison”), together with the hearing bundles. The bailiff verified that Mr Dusoruth was still in the Prison and informed Mr van den Heuvel that the documents had been placed in sealed envelopes marked, in Dutch, “Official document. Read contents immediately” and served by his colleague on 14^th October 2020. A report was annexed to Mr van den Heuvel’s witness statement from the bailiff who effected service, confirming such service by delivery to the Prison.

A bailiff further delivered a letter to the Prison dated 9^th November 2020 enclosing the statement of Mr van den Heuvel and asking Mr Dusoruth to provide him with an email address if he wished to attend the hearing of the petition by video link. A report confirming service at the Prison from the bailiff is exhibited to Mr Appleton’s third witness statement. He similarly exhibits a report confirming service by the bailiff of the bankruptcy order at the Prison on 17^th November 2020.

A receipt for documents is also exhibited by Mr Appleton, bearing the date 14^th October 2020 and what looks like Mr Dusoruth’s signature. This was provided by a Ms Schrijnder, a case manager at the Prison. Mr Dusoruth did not deny that this was his signature but suggested that it could be a receipt for documents in relation to another court case and that if he had received the documents, he would have responded.

I am afraid that I cannot accept this answer. There is a clear trail of documents showing service as directed by this court and in accordance with Dutch law. It terminates, in the case of the petition and details of the hearing, with a receipt by Mr Dusoruth. The provenance of that receipt is clearly explained in Mr Appleton’s third witness statement and Mr Dusoruth has had ample opportunity to request from the Dutch authorities evidence as to what might have been delivered to him on around that date by other persons. He has not done so.

I am satisfied that he was properly served with the petition, Service Out Order and the petitioner’s submissions on COMI, and received them into his hands, on or about 14^th October 2020. I am similarly satisfied that he received the bankruptcy order itself on or about 17^th November 2020. I reject his case that he was not aware of any of this until December 2020. It follows that he knew the Petitioner’s case as to both his COMI and as to the debts relied upon before the petition was heard. He was informed that the petition hearing would take place by video and invited to provide an email to which the hearing link could be sent. He has offered no reason why he was unable to do so.

I turn then to consider the evidence on COMI, an issue that Mr Dusoruth could have raised on receipt of the petition and the Service Out Order but which he did not raise until making the Annulment Application in June 2021.

The petitioner’s position is that the centre of Mr Dusoruth’s business interests is in London. Mr Appleton’s witness statement in support of the Service Out Application states that Mr Dusoruth administered his interests from Orca UK’s offices in London and owned and developed properties in London for his own benefit using the companies of which he was the ultimate beneficial owner. In short, his position was that Mr Dusoruth’s COMI was in England on the basis that he conducted his independent professional activity as a company director and investor from this jurisdiction. That was ascertainable by third parties and was indeed used by third parties, who corresponded with Mr Dusoruth at the basement flat at Pont Street.

The joint liquidators’ evidence is that the basement flat at Pont Street was used as the office for Orca UK, though later this function was later moved to 1 Fore Street, London EC2. Mr Appleton puts into evidence a record of an interview with Mr Green that shows that he told the liquidators that St George’s was similarly administered by Orca UK in London. He told them:

Mr Appleton also points to the following in his written evidence –

There are also factors highlighted by Mr Appleton that are of a more personal character but, at the least, serve to reinforce Mr Dusoruth’s close and long-standing association with the jurisdiction –

Mr Dusoruth’s position was that he provided his services to his various companies via Brazz. Brazz was engaged by Orca UK and LPF to provide services to the companies and Mr Dusoruth was paid a salary accordingly. It was Brazz that was the nerve centre of his business operations and of Orca UK. It operated from Bosmanslei 34, 2018 Antwerp, along with other related companies. Its IT infrastructure was operated from a town a few miles away. Following Mr Dusoruth’s imprisonment the main office closed and the business operated from a nearby property in Antwerp.

Mr Dusoruth’s written evidence in relation to Orca UK sought to emphasise an international character in its operations. He said that individuals working in Bermuda, the Netherlands, the United Kingdom and the United States reported to Mr Vincent Mast (ordinarily resident in Belgium), Mr Pieter Steltenpool (ordinarily resident in the Netherlands) and Mr Kurt De Wreede (ordinarily resident in Belgium). Those gentleman would, with Mr Dusoruth, report to Mr Noel Buttigieg Scicluna in Malta. Additionally working as part of Orca UK’s “core team” were a Mr Scott Willkolm, Mr Michael Crane, Mr Tim Stoddaert (all ordinarily resident in the USA) and Mr Benjamin Colas (ordinarily resident in the UK) Orca UK itself had operations in Belgium, Bermuda, Malta, the Netherlands and the UK.

He lists a further 14 “employees of Orca”, who he describes as ‘heavily centred in Belgium”. These were however, as indeed Mr Dusoruth goes on to say in his evidence, employees of European Datacomm NV (“EDC”), which went into liquidation in December 2017. This company was concerned in vehicle tracking systems and there is nothing in the evidence to satisfy me that it had any role in the operation of Orca UK or Brazz. There is no basis on which Mr Dusoruth could justify prefacing his list of these employees with the words “Employees of Orca are heavily centred in Belgium.” They were not employees of Orca UK at all, or of another of Mr Dusoruth’s companies with “Orca” in its name, and had not been employed by EDC since 2017. I cannot accept Mr Dusoruth’s account of the structure of Orca UK’s administration.

There is a conflict between the accounts given by Mr Dusoruth in his evidence as to the amount of time that he would spend in London and the account given by Mr Green at interview with the liquidators. Mr Dusoruth explains that he himself hardly ever travelled to London for Orca UK’s business. Those meetings that he had were concerned with business dealt with by Brazz. In 2009, UK activities represented 15% of Orca UK’s worldwide team’s activities. Again, he gives details of the structure of the UK operation. A Miss Belinda Van Kooten was responsible for Phase 1 of the development of the Pont Street Properties, but also assisted with the Marsh Wall project. She initially lived in the Netherlands and travelled to the UK but later emigrated to the UK. Mr Dusoruth says his contact with her was principally by telephone and video conference. Miss Carol Pevny was ordinarily in resident in London but travelled to the main office in Antwerp for meetings. It was following her resignation in 2016 that Mr Green was employed. He was ordinarily resident in London and used Pont Street and then Fore Street as a “satellite office”, travelling to the main office in Antwerp and also to Bermuda.

As to his own background he explains that he was born in Antwerp and held dual Belgian and British nationality. At the age of eight he and his mother and brother moved to London following the death of his father but they returned to Belgium in under a year. He moved to London in November 1994 for work and lived in London until 2000, but maintained close links with Belgium, purchasing his family home in Antwerp in 1995 and returning there at least two weekends a month. His UK income was paid into a UK account. Following his return to Belgium he travelled to various countries over just under a year. From 2002 to 2012 he would travel to the UK for meetings but managed his business affairs from Antwerp. The trips involved signing documents but the development of the Pont Street Properties was the responsibility of Ms Van Kooten. He remained resident in Belgium and he sets out a number of documents that show his domestic life is located there, such as car insurance, personal loans and so forth. It is not in fact in dispute that he is indeed resident in Belgium, but it is notable that this is really the only documentary evidence he supplies, apart from the questioned Consultancy Agreement and a handful of invoices to which I shall refer later.

He gives a detailed account of the amount of time that he would spend in the UK. I do not need to set it all out but, from November 2008 to March 2014, he would spend two to four days in London, staying overnight in addition to day visits once a week. From March 2014 to March 2016 he would spend four days a month in London, staying in Pont Street and also visit London for the day about twice a month. From March 2016 to November 2018 he travelled to London for the day about once a week for 20 weeks of the year. He has not been in the UK since November 2018. Throughout those periods he was principally living at the family home in Belgium and also travelled to Bermuda and other jurisdictions. Given Mr Dusoruth’s misleading account of the number of staff employed by “Orca” in Belgium and the unsatisfactory nature of his evidence as a whole I am unable to accept this evidence as a reliable account.

I start from the position that Mr Dusoruth’s description of himself as a “self-employed investor” or “director” / “investor” should be taken at face value. That is how he described himself on publicly available registers. It is a description that accords with the evidence. Mr Dusoruth operates his business and investment interests through a number of corporate vehicles of which he was the ultimate beneficial owner and of which he was a director. A number of these companies are registered outside England and Wales but the centre of gravity of the administration of Mr Dusoruth’s business interests, on the evidence available to me, was in London.

The significant part of those interests, on the evidence before me, was the development of the London-based properties. The evidence is that monies were paid from St George’s by way of unsecured loans to companies then holding the Marsh Wall Property and Pont Street Properties, which were based in London. Mr Dusoruth procured that the ownership of these companies would be “on-shored”, by which process the properties came to be held by Marsh Wall UK and the Pont Street Companies. These were very substantial assets. The Pont Street Properties have been sold by receivers for £9.5 million and the Marsh Wall property for £26.65 million. Any profit from the intended development of these properties would have been realised in England. These assets were held by companies registered in England and Wales and beneficially owned and controlled ultimately by Mr Dusoruth, who gave his usual country of residence as the UK in documents filed at Companies House and the relevant company’s registered office address as his service address. While Mr Dusoruth also stated that he had property interests in a number of countries, there is no evidence of this.

There is evidence of the administration of a number of Mr Dusoruth’s companies, such as Orca NV and St George’s, from the offices of Orca UK in Pont Street and the processing of Mr Dusoruth’s expenses and invoices from his companies there. Documents relating to Mr Dusoruth’s business and personal finances in England were also found at the Pont Street office. Mr Dusoruth’s American Express statements were sent to the address and were processed and met by Orca UK, on his case to reimburse expenses, both business and personal, incurred all over the world. This tends to suggest that the Pont Street office was not merely the administrative centre of Orca UK but, in turn, the regular administrative hub of Mr Dusoruth’s business and financial interests as a whole.

I also take into account the evidence that I might expect to have from Mr Dusoruth to counter the petitioner’s case. He provides extensive evidence of his residence and personal life in Belgium, which is not disputed, but has been unable to do so in respect of the administration of his business affairs. Nothing has been produced to show that Brazz provided an administrative hub for this in Belgium, indeed Mr Dusoruth’s account of the extent of that company’s operations at the time of the petition is unsupported by independent evidence. Troublingly, his account is misleading. He seeks, rather transparently, to pass off employees of EDC as employees of Orca UK, or a related entity including the word “Orca” in its name, in Belgium. This seems to me to be a crude attempt to create the impression of a substantial administrative backroom in Belgium. As I have said, I do not accept his account of this.

Strikingly, he provides no instances of third parties with whom he did business, or business creditors, being provided with details of a place of business outside England. The one exception to this is the Consultancy Agreement, which refers to Mr Dusoruth as “a British citizen with a professional address at Bosmanslei 34, 2018 Antwerp”. I place no reliance on this document given that the unchallenged evidence is that it was not among the papers found by the liquidators and there is no evidence to support Mr Dusoruth’s contention that it was made in 2015. Mr Dusoruth accepted that he had known for a long time that the petitioner’s case was that this document was a later creation – a “forgery” as it was put to him in cross-examination – and yet he produced nothing to support the assertion that it was created in 2015. As I shall explain in the context of the disputed debt, this is extraordinary given the manner in which Mr Dusoruth says that this document was created and approved. I do not accept this document as a contemporaneous document recording an agreement reached in 2015 between the parties referred to in it. Moreover, it is not a document that would serve to demonstrate to third parties where Mr Dusoruth’s COMI was in any event. The three companies mentioned in the Consultancy Agreement were each vehicles for Mr Dusoruth. The Consultancy Agreement is a document internal to the administration of Mr Dusoruth’s business interests and was not for external consumption at all.

Standing back and looking at where Mr Dusoruth’s principal place of business was as at the time of the petition, and where, objectively, his COMI would have appeared to be to third parties, particularly creditors, on the evidence I have, the answer must be England and Wales. Not only is this jurisdiction recorded at Companies House for Mr Dusoruth in connection with his administration, as a director, of the companies through which he conducted his business as an investor, it was also the location of the principal business assets of which he was the ultimate beneficial owner, insofar as the evidence shows. The management of Mr Dusoruth’s business interests generally appears to have been conducted at Pont Street, as evidenced by documents relating to various of his corporate vehicles being found there and the expense and invoice processing function performed there. Mr Dusoruth’s contrary case would have been quite easy to evidence by, for example, witness statements from the many people whom he claims were involved in the administration of his business interests in Belgium, but none have been produced.

I am satisfied that Mr Dusoruth’s principal place of business was in England and Wales and he has not displaced the presumption that this was his COMI at the relevant time. To the contrary, I am satisfied that, considered objectively, England and Wales was the jurisdiction that would be ascertainable by third parties as the jurisdiction in which he carried on the administration of his affairs on a regular basis. None of this is altered by the fact that he was detained in Belgium when the petition was presented.

The debt is set out in the petition as follows:

Mr Dusoruth accepted in cross-examination that his American Express bills were paid off every month from 26^th November 2017 to 26^th January 2019. He also accepted that the liabilities discharged by Orca UK included luxury goods and holidays but also substantial business expenditure. What he relies upon in his statement is an arrangement with Orca UK and Brazz reflected in the Consultancy Agreement, which he says allowed for this personal credit card to be paid off by Orca UK, which payments would be set off by Brazz against sums due from Orca UK for the time that he “spent working for Orca UK and/or its clients”. He explains that this was because Orca UK was a small company and unable to obtain sufficient credit to finance its costs. The element of the sum that Brazz set off against sums due from Orca UK that was referable to his personal expenses was set off as between Brazz and Mr Dusoruth against loans made by Mr Dusoruth to Brazz. The way he puts this convoluted arrangement in his witness statement is as follows:

Mr Dusoruth has produced the Consultancy Agreement and three invoices, which, he says, evidence the arrangements between his companies. The Consultancy Agreement expressed to be made between LPF, defined as “the Company” on the one part, Brazz, defined as “the Consultant” on the second part and Orca UK on the third part. LPF and Brazz were collectively referred to as the “Parties”. Orca UK was not included in that definition. Remuneration was dealt with under that agreement at article 5 as follows:

Mr Appleton’s unchallenged evidence is that neither the Consultancy Agreement nor the invoices were among the papers found by the liquidators. The Consultancy Agreement was only produced by Mr Dusoruth as an exhibit to his witness statement in August 2021. Mr Ashworth put it to him that this document was simply a forgery. Mr Dusoruth stated that he obtained the Consultancy Agreement from “the central administration in Antwerp”, which he again described as the administrative centre of his group of companies. Specifically he said that he obtained it from the back-up server in Aurelium. He said in oral evidence that it was drafted by someone with legal experience at the accountancy practice PwC, possibly with input from one of a number of well-known City firms – he gave the names Clifford Chance, Simmons & Simmons and Baker McKenzie. Given the tortuous drafting of the Consultancy Agreement, and the number of spelling errors and grammatical infelicities in it, I find this surprising.

Mr Ashworth asked him where the preparatory documents for this agreement were, such as emails circulating drafts. Mr Dusoruth also thought these would be on the server in Antwerp. He maintained that it was the decision of Mr Colcas and Mr Sciculuna and him to enter into the Consultancy Agreement, following advice from Mr Steltenpool, and it had been checked with PwC. He said that there would have been discussions about it by telephone and email. Similarly, he said that any minutes approving this arrangement would be kept electronically in Antwerp. Despite this, there is no evidence to show that the Consultancy Agreement was discussed at around the time it purports to have been signed. Nor is there any minute of board approval for this arrangement, which one might readily expect to be available if kept electronically, and there is no evidence from anyone alleged to have been involved.

Mr Dusoruth accepted that he had not produced a single contemporaneous document to support this agreement as a document entered into in 2015 or provided any metadata to show when it had been created. This is extraordinary given Mr Dusoruth’s acceptance that he had understood for a long time that the petitioner’s case was that the Consultancy Agreement was a forgery, in that it was a later creation to try to explain away the payments made to him. One might have expected a contemporaneous email proposing or confirming the arrangement or referring to it in some way. This is particularly so given that, on its face, the Consultancy Agreement was executed electronically on the same day by three people in three different cities. If there were any prospect of successfully meeting the challenge to the provenance of this document I am satisfied that something could have been produced to support the contention that it was made in 2015. The fact that Mr Dusoruth has chosen not to produce a shred of evidence in support of this document, either in evidence filed in support of the Annulment Application or in response to the wholesale attack on his credibility set out in Mr Appleton’s evidence in answer leads me to the conclusion that there is no real prospect of him doing so.

In any event, in my judgment, the Consultancy Agreement does not raise a genuine triable issue on the question of the propriety of the payments to American Express. It is very difficult to follow and inaptly drafted to reflect the agreement that Mr Dusoruth says was reached in 2015. It sets out what has been agreed between “the Parties”, that is to say LPF and Brazz. Article 5, dealing with remuneration, imposes no obligation on Orca UK, except at article 5.3, which contains an agreement between LPF and Orca UK alone.

Article 5.1 provides for Brazz to charge a fee to LPF for services provided to LPF or its subsidiaries (“the Servicing Fee”). It does not contemplate a fee being charged to Orca UK. Article 5.2 provides that travel time from the offices of Brazz to LPF and its subsidiaries was to be included in the time charged, together with travel and accommodation expenses for the “Consultant’s family”, up to a cap, and a personal credit card (“the Consultant Card”) could be used for the “Business Expenses”.

Article 5.3 contains the agreement between LPF and Orca UK that Orca UK will pay the “total balance rendered on the Consultant Card”. This is defined as the “Consultant Expenses”. Mr Dusoruth maintains that this allowed the payment of the whole balance on the card, no matter what the expenditure related to. That does not seem to be the natural reading of the word “expenses”. The clause envisages that an invoice will be rendered for the Servicing Fee and the Business Expenses, net of any Consultant Expenses paid. No provision is made for what is to happen if the total balance discharged exceeded the amount of the Service Fee and the Business Expenses, which is indicative of the Consultant Expenses being limited to Business Expenses incurred, rather than all conceivable expenditure charged to the card. More fundamentally, article 5.3 is not an agreement between Brazz and Orca UK to discharge the Consultant Expenses. The agreement is between LPF and Orca UK in this regard. The obligation to pay Brazz for the Servicing Fee and Business Expenses lay with LPF, although invoices were to be sent to Orca UK. There is no provision for the set off of sums paid to discharge the credit card liability against sums properly due from Orca UK to Brazz. I cannot see how discharge of Mr Dusoruth’s credit card liability can be said to have benefitted Orca UK and the disparity between the arrangement that Mr Dusoruth sets out in his witness statement and the Consultancy Agreement itself is not explained.

Also exhibited to Mr Dusoruth’s statement are three invoices, signed as approved by Mr Dusoruth himself, the provenance of which is as unclear as that of the Consultancy Agreement. The invoices are not consistent with article 5.4 of the Consultancy Agreement. They are not monthly invoices, but annual invoices, simply setting out large and barely particularised charges and stating that the sums will be discharged by set off. The invoice of 12^th December 2017 for €93,000 concludes:

Even bearing in mind the low threshold that Mr Dusoruth has to meet, I cannot accept at face value a Consultancy Agreement that is belatedly produced, as if out of thin air, and that is inconsistent with the invoices provided in support of it and the account Mr Dusoruth gives as to what it was intended to achieve. One would not of course expect Mr Dusoruth to produce the evidence that might have been produced at a trial, but in order to clothe this document, and Mr Dusoruth’s case on the reasons for the payment of his personal credit card bills, with a degree of credibility against an allegation that this is an example of the dishonest creation of documents of a similar sort to that alleged in the Lioncross litigation, one would have expected some minimal corroborative evidence to have been provided.

I find that Mr Dusoruth’s case in this regard is not sufficiently credible to meet the threshold of raising a genuine triable issue. This court daily must consider the quality of the evidence put before it when considering whether that threshold is met. It approaches alleged disputes with a degree of realism and in context. Where the authenticity of a document is raised in the context of a history of serious questions about the honesty of the debtor relying upon it, a debtor should provide some minimal evidence of its provenance, or at least explain why such evidence is not available, sufficient to satisfy the court that there is a real prospect that its authenticity will be accepted at trial. Mr Dusoruth has chosen not to do so. Even were I to be satisfied that there was a realistic prospect of this document having been agreed at the time, it goes nowhere near to supporting Mr Dusoruth’s claim that there was an arrangement whereby his personal expenditure could properly be discharged by Orca UK.

Curzon Street is described as a two or three bedroom flat in Mayfair, for which the rental was £8,450 a month, going up to over £9,000 a month. Mr Green in interview with the liquidators said that it was occupied by a member of Mr Dusoruth’s family. The invoices are addressed to Orca UK with the name “Ramesh Dusoruth” underneath that of the company and above the address of the flat. Mr Ashworth put it to Mr Dusoruth that rent demands were addressed to Mr Dusoruth at that address because he was in occupation with his family. I am not satisfied that this, of itself, must lead to the conclusion that Curzon Street was rented by Mr Dusoruth personally or that it was used by him or his family. It is not unusual for a document addressed to a company to identify a point of contact, even if it does not expressly state that it is for the attention of that person.

It is, however, notable that the invoice was addressed to an address in England rather than the address in Belgium that Mr Dusoruth says was the administrative hub of his business interests. More notable still is that the invoices for rent, insofar as they are in evidence, were addressed to the company, giving Mr Dusoruth’s name as the contact, at the flat itself, not the registered office of Orca UK.

Mr Dusoruth’s evidence is that he and his family stayed at 66a Pont Street when in London. Curzon Street was used only for Orca UK’s consultants, including Mr Steltenpool and a Mr Willkolm and latterly Miss Van Kooten, whom he describes as a “Dutch citizen who initially lived in the Netherlands and then emigrated to the United Kingdom” who “mainly worked from home, travelling from the Netherlands to the United Kingdom as part of her own agreement with Orca”. Ms Van Kooten originally was provided with hotel accommodation from March 2012 but, as her time in the UK in connection with the Pont Street and Marsh Wall projects increased, it was decided towards the end of 2015 that Orca UK would rent a flat. Mr Dusoruth says:

Mr Appleton notes it is not at all clear why expenses related to Ms Van Kooten, as the person responsible for the refurbishment of the Pont Street Properties, should be payable by Orca UK. Pont Street was not owned by Orca UK or by St George’s from which monies paid into Orca UK came. Again there is simply nothing to support this alleged arrangement, nor why it appears from the liquidators’ investigations that €387,879 and £49,628.35 was paid to Ms Van Kooten from Orca UK’s bank account.

The sending of rent demands addressed to Orca UK and Mr Dusoruth and of electricity demands addressed to Orca UK at the flat are strongly suggestive that the address was given to the landlord and electricity provider on the basis that correspondence sent to it would come to the attention of a person involved in the management of Orca UK, and indeed to the attention of the person named on the rent demand. That is inconsistent with the flat being occupied by a consultant. Again, it would have been easy to produce some evidence of the alleged arrangement with Ms Van Kooten, given her apparently long association with the company, in the form of a witness statement from her or from someone else who could confirm the arrangements. Again, however, Mr Dusoruth has chosen to assert the propriety of the arrangements and then decline to put in any sort of reply to the incongruities highlighted about his assertion in the evidence filed by the petitioner in answer. That will inevitably inform the court’s view as to the substance of the dispute.

I am not satisfied that Mr Dusoruth has raised a triable issue as to this flat being used by him or a family member for his benefit. No such documents have been produced and Mr Dusoruth, again having known of what the petitioner says about the Curzon Street Debt since 2020, has produced nothing to support his case.

In my judgment, Mr Dusoruth has not raised a triable issue in this case. It was, given the circumstances in which Mr Dusoruth finds himself, inevitable that he would be expected to show some corroborative evidence of his case. I should say that I am satisfied that that is a conclusion to which I have would have come had this question been determined on submissions alone. As is often the case, cross-examination served in large measure simply to draw to the court’s attention the relevant documents and highlight gaps in the evidence. Mr Dusoruth’s failure to provide credible answers in cross-examination fortifies my view but, at bottom, this is a familiar type of case in which assertions are made by a debtor that are not credible in themselves and the minimal level of evidence that might serve to fortify those assertions so that they cross the sustainability threshold is absent.

Section 267 IA 1986 provides insofar as it is relevant:

No definition of “liquidated sum” is given in the statute but the concept has been considered both by the courts and in academic works. The Petitioner’s case is straightforward. Mr Ashworth referred me to the concise summary of the principle given by Chief ICC Judge Briggs in Sandelson v Mulville [2019] EWHC 1620 (Ch) at paragraph 5:

The petitioner says that its claim is for a specific sum in the case of the American Express Debt and the Curzon Street Debt. In relation to the American Express Debt it says that Orca UK, having discharged Mr Dusoruth’s liability, is subrogated to American Express’s debt claim against him and can petition just as American Express itself could. Similarly, if Orca UK discharged Mr Dusoruth’s personal liability to pay rent on Curzon Street, it would similarly be subrogated to the landlord’s claim for the rent. Even if the lease were in Orca UK’s name the rent was properly a liability of Mr Dusoruth. The debt is claimed in a specific sum. It is not a damages claim, which would plainly be unliquidated, and nor is it a claim for an account of Mr Dusoruth’s use of company money. It would be open to Orca UK to seek such an account, but it does not have to do so. Its claim is for restitution for unjust enrichment and it can simply claim payment of the specific sum of money misapplied by him without any need for an accounting exercise. This is what it did and nothing further is required to quantify its claim. Mr Dusoruth may dispute liability for some or all of that debt but that does not render the claim itself a claim for an unliquidated sum.

Mr Dusoruth’s position is that this is not open to the petitioner on the basis of long-established authority. I shall consider those authorities first before addressing Mr Ashworth’s subrogation point. Mr Brown relied on Hope v Premierpace (Europe) Ltd [1999] BPIR 695. Rimer J (as he then was) there considered an appeal from the district judge’s refusal to annul a bankruptcy order on the grounds that it ought not to have been made. The petition was based on a claim that the debtor had misappropriated monies during his employment with the petitioner. The debtor in fact admitted that he had taken monies from the company but said that this was reimbursement of payments he had personally made on its behalf. The debtor had not attended nor been represented at the original hearing, having been told by an court official that the hearing had been adjourned. He applied to annul on that basis. The district judge dismissed the annulment application.

The appeal to the High Court was presented, first, on the basis that it was elementary the courts should not make final orders without giving the debtor the opportunity to be heard and it was inconceivable that the judge would have made the bankruptcy order had she known that the debtor had been misled as to the hearing date. There was only one way that the judge hearing the annulment application could properly have exercised her discretion in the circumstances and that was to annul the bankruptcy order.

That argument succeeded and Rimer J considered that he should deal with the matter on the basis of the argument that had been advanced before the district judge, without consideration of the underlying merits. The bankrupt had, however, obtained permission to argue the additional ground that the petition debt was not for a liquidated sum. Rimer J dealt with this at 699 as follows:

Mr Ashworth argued that the statement in Portman Building Society v Hamlyn Taylor Neck (a Firm) [1998] 4 All ER 202 that the remedy for a claim for money had and received is an account and order for payment was based on a concession by counsel and was obiter dicta. An account is not “a remedy”, is discretionary and is not necessary in all cases. Thus, in Libertarian Investments Ltd v Hall (2013) 16 HKCFAR 681 Lord Millett, sitting as a judge of the Hong Kong Court of Final Appeal, said:

Rimer J considered the point again in Navier v Leicester [2002] EWHC 2596 (Ch). This was again an appeal to the High Court. Mr Leicester sought to reverse the decision of the district judge setting aside a statutory demand presented against Mr Navier, who was the official receiver attached to the court. The alleged debt arose from the execution of a writ of fi. fa., apparently leading to damage to Mr Leicester’s property and, the failure of the enforcement officer to account for property taken, including some £60,000 of cash. The official receiver in fact had no involvement in Mr Leicester’s affairs at the time and no involvement in obtaining or executing the warrant. The district judge set aside the statutory demand on the basis that there was plainly a genuine and substantial dispute as to the debt. On appeal, Rimer J thought it “an almost unprecedented proposition” that the point was even arguable and the appeal would have failed on that basis alone. The judge himself also raised what he described as the “fairly obvious” point that the claims could not be regarded as claims for liquidated sums. He said at paragraph 20:

In Truex v Toll [2009] EWHC 396 (Ch) a solicitor sought to bankrupt his former client for unpaid fees, which had not yet been assessed. The Chief Registrar at first instance held that the sum due must exceed the statutory minimum required to found a bankruptcy petition. He gave permission to appeal. Proudman J held that the fees had not been judicially assessed and did not constitute a liquidated sum to any extent. She said:

The principle was discussed again by Briggs J, as he then was, in McGuinness v Norwich and Peterborough Building Society [2010] EWHC 2989 (Ch). This was an appeal from the decision of a deputy registrar to make a bankruptcy order on a petition based on sum due under a guarantee agreement. He held that the agreement created a liquidated liability in debt rather than an unliquidated liability in damages. On appeal, Briggs J held that the deputy registrar had been correct to characterise the obligation as one of debt, but he observed:

On a further appeal to the Court of Appeal, reported at [2011] EWCA Civ 1286, Patten LJ carried out an extensive review of the authorities which I do not propose to repeat in full but I will set out some parts of it. He identified the introduction of the term “liquidated sum” in the Bankruptcy Act 1869 as a codification of the earlier decisions of the court not admitting to proof debts which were not quantified and had to be determined by a jury. He said:

He went on to deal with Hope v Premierpace as follows:

Mr Ashworth’s submission was that Hope v Premierpace was thus approved on its particular facts and Rimer J’s obiter observations did not constitute a statement of principle. He referred me further to Goff & Jones: The Law of Unjust Enrichment (9^th ed) at paragraph 1-44, which says:

The English authority given for the first of the two scenarios in the second sentence in the footnote to the extract from Goff and Jones, to which I was not referred, is Merito Financial Services Ltd v Yelloly [2016] EWHC 2067 (Ch). Master Matthews considered claims of misappropriation by a director from a company of certain sums (referred to as “category b.” by the Master) and the submission of false claims for business expenses in breach of trust or his fiduciary duty (referred to as “category d.”). At paragraphs 45 to 47 of his judgment Master Matthews considered these claims as follows:

The footnote to the passage from Chitty on Contracts cites Biggerstaff v Rowatt’s Wharf [1896] 2 Ch 93. In that case, the question arose as to whether a claim for monies had and received for a consideration that had wholly failed in respect of undelivered barrels of oil could be set off against unpaid rent. The judge at first instance held that it could not, the claim in respect of the barrels being unliquidated and the claim in respect of rent being liquidated. The Court of Appeal disagreed. Kay LJ said at 105:

The passages from the two practitioner texts relied upon by Mr Ashworth do not assist me. As the passage from Goff & Jones states on its face, and consideration of the authority puts beyond doubt, it is addressing a question of procedure and the ambit of a “claim for a specified amount of money” for the purposes of a request for default judgment under CPR Part 12. The treatment of a sum claimed in a prayer for relief for the purposes of a procedural judgment in default does not seem to me to be determinative of the substantive requirements of section 267 IA 1986. Although the Rules of the Supreme Court had previously used the term “liquidated demand” rather than “claim for a specified amount of money”, the superficial similarities of the expressions “liquidated demand” and “liquidated sum” do not mean that the same approach is to be applied. It is clear from the judgment of Patten LJ in McGuiness, at paragraph 38, that he had in mind the use of the expression in the default judgment context but it did not lead him to doubt Rimer J’s approach to the question of what constituted a claim for a liquidated sum in Hope v Premierpace. Similarly, the treatment of cross-claimed sums for the purposes of the rules of set off is also an entirely different context.

I do not read Patten LJ’s judgment as suggesting that Hope v Premierpace is confined to its facts. He was observing that it was not authority for the proposition that a claim for damages can never be regarded as a claim for a liquidated sum. It appears to me that it is good law as to the principle of what can be regarded as a liquidated sum for the purposes of section 267 IA 1986. Indeed, he says in terms that a claim for money had and received is not a liquidated sum within that section. Moses and Ward LJJ agreed. I am bound by the Court of Appeal’s decision in that regard.

The law is that a liquidated sum is a sum that is “pre-ascertained” or “a specific amount which has been fully and finally ascertained”, although that allows for calculation in accordance with a contractual formula or mere addition. The question of whether a debt is for a liquidated sum must be kept distinct from whether it is disputed. A person may have no prospect of defending a claim for damages, or unassessed solicitors’ fees, in excess of the statutory minimum but that does not convert the claimed sum into an unliquidated sum. By the same token it does not matter whether the petitioner puts a figure on his claim, even if he can calculate it “down to the last penny”. It must be liquidated either because the quantification of the debt is one from which the debtor is not permitted to resile as a matter of admission, acknowledgment or agreement, or because it has been determined as a matter of the court process.

While it may be clear that the debtor’s defence to the claim has no merit, until there is a determination that the debtor has been unjustly enriched, and, if so, to what extent, and what restitutionary remedy is appropriate, it cannot be said that the debtor’s liability has been pre-ascertained. To hold otherwise would, as Proudman J said, conflate the nature of the claim with whether there is a dispute about liability. The process may require little or almost nothing by way of an account – that is acknowledged by Rimer J in Hope v Premierpace in saying that the account may be dealt with in a “summary way” – but the process of accounting is, as Lord Millett says, the first step in a process enabling the claimant “to quantify” a loss and “seek the appropriate means” by which restitution may be effected. Until that quantification has taken place and the appropriate means of restitution determined, the claim cannot be liquidated within the meaning of section 267 IA 1986. It is true that there may be cases where the extent of the claimant’s claim is so clear that a formal account is unnecessary and might not be even be pleaded – the claimant can simply say “this is the sum to which I am entitled”. That would have been the position in both Hope v Premierpace and in respect of the cash in Navier. Nonetheless, the claimant’s entitlement to his remedy and the sum in which he is entitled to be reimbursed must still be established before a petition may be presented.

That leads me to the question of subrogation to the debt discharged by the payments, on which Mr Ashworth relied as a means by which his client’s claim could be characterised as a debt. He accepted that it arises out of the unjust enrichment of Mr Dusoruth. In Swynson Ltd v Lowick Rose llp (formerly Hurst Morrison Thomson llp) (in liquidation) [2017] UKSC 32. Lord Sumption JSC (with whom Lord Neuberger of Abbotsbury PSC, Lord Clarke of Stone-cum-Ebony and Lord Hodge JJSC agreed), described subrogation as follows:

Equitable subrogation therefore is a remedy that may follow from a determination that the defendant has been unjustly enriched where it is appropriate. Whether there has been unjust enrichment and, if so, what the remedy for that unjust enrichment is, is a question for judicial determination. Subrogation is not automatic. Lord Sumption noted that it does not follow, even where such a remedy is granted, that the claimant will be subrogated for all purposes to the rights of the creditor whose debt his payment discharged. It does not seem to me to be open to the petitioner in this case to declare that it is subrogated to the rights of American Express or the landlord of Curzon Street. That remains a matter for judicial determination, which has not yet occurred.

It appears to me that neither of the debts in the instant case can be regarded as a liquidated sum. If all that were required were for the petitioner to name the sum he claims to be entitled to and to characterise any arguments to the contrary as simply going to dispute, rather than the threshold question of whether the debt is for a liquidated sum, it is difficult to see how any claimed sum could be regarded as unliquidated. I agree with Mr Brown that this case is really no different to that in Hope v Premierpace. The process of identifying the existence or extent of the unjust enrichment in a simple case of the taking of monies may not require an account to be pleaded, or more than an accounting exercise so vestigial as to need no special mention of it, but a determination of both liability in unjust enrichment and remedy to be given is required before the claimed sum can be regarded as a liquidated sum for the purposes of section 267 IA 1986.

Mr Brown contends that, if the debt set out in the petition is not such as to found a petition, then there is no discretion as to whether it should be set aside. He relies on Rimer J’s observation in Hope v Premierpace that “no bankruptcy order could properly be made” on the petition. Rimer J was not however considering the question of discretion. He made that observation to explain his reasons for not merely annulling the bankruptcy order but dismissing the petition. The question of the exercise of discretion to annul in that case did not arise other than in Rimer J’s observation that there was no way in which the district judge could properly have exercised her discretion other than in favour of the debtor in circumstances where the debtor had been misled into believing that the hearing would be adjourned. It is not authority for the proposition that a bankruptcy order made on a petition based on an unliquidated sum must be annulled.

In the case of a bankruptcy order made where the debtor’s COMI was outside England and Wales, however, the authorities are clear that there is no discretion not to annul under section 282(1)(a) IA 1986, at least on a creditor’s application. In Raiffeisenlandesbank Oberosterreich AG v Meyden [2016] EWHC 414 (Ch), Nugee J considered the observations in Munks v Munks [1985] FLR 576 that a party affected by an order made without jurisdiction is entitled to have it set aside as of right, which he consider to be a general proposition. He went on to consider whether that general proposition continued to obtain under the statutory scheme of the IA 1986. He concluded:

In considering the statutory overlay he said that:

This was followed in Deutsche Apotheker-UndArztebank EG v (1) Leitzbach (2) The Official Receiver [2018] EWHC 1544 (Ch) by His Honour Judge Hodge QC, sitting a judge of the High Court, in an annulment application brought, as in Meyden, by a creditor of the bankrupt. He concluded:

Mr Ashworth suggested that, notwithstanding the clear terms in which Nugee J expressed himself, his judgment left open the possibility of a residual discretion. In support of this he referred to Nugee J’s expression of concern that the absence of a discretion gave rise to the possibility of an annulment application being brought many years after the order had been made. Nugee J dealt with this by noting the observation of Sir Roger Ormrod in Munks that any person affected by an order is entitled as of right to have it set aside. He suggested, but did not have to decide, that it might be very difficult for a creditor to show that he was “affected” by the order some 10, 15 or 20 years after the event.

Both Nugee J and Judge Hodge QC were dealing an annulment application brought by a creditor on the basis that the debtor’s COMI was outside England and Wales, and the authorities to which they were referred were all directed to the effect of what is now the recast EU Regulation. In view of my finding that Mr Dusoruth’s COMI was in England and Wales the principle does not apply directly but the question is whether it applies more generally to annulment on the grounds that the statutory requirements for presenting a petition were not met.

In this regard Mr Ashworth accepted that the question of whether the debtor’s COMI was within England and Wales was a genuine jurisdictional question, that is to say that the effect of the recast EU Regulation and section 265 IA 1986 at the time of the petition was to deprive this court of jurisdiction to open main proceedings where the debtor’s COMI was elsewhere in the EU. As Nugee J said at paragraph 13 of his judgment:

After the hearing I was referred by an email from the petitioner’s legal representatives to the decision of Mr David Mohyuddin QC, sitting as a deputy High Court Judge, in Khan v Singh-Sall [2022] EWHC 1913 (Ch). I asked my clerk at the end of July to communicate to Mr Brown that he could make any submissions on this case by email. None were received prior to the circulation of the draft judgment. It seems that an email composed by Mr Brown in reply did not reach the court but, on receiving the draft of this judgment, Mr Brown confirmed that he did not wish to make any further submissions.

This case was an appeal from a district judge’s refusal to annul the bankruptcy order made against the appellant. The annulment application had been made on the grounds that the debtor’s application to adjourn the hearing of the petition should have been granted, the statutory demand had not been validly served, the statutory demand and the petition failed to give details of the petitioner’s security and the debt was disputed on substantial grounds.

The district judge held that, in failing to disclose the security, the mandatory requirements of sections 267(2)(b) and 269 IA 1986 had not been complied with and that there was a genuine triable issue as to the petition debt. It followed from each of those findings that the bankruptcy order ought not to have been made. Nonetheless she declined to exercise her discretion to annul the bankruptcy.

The deputy judge on appeal set out the authorities in some detail. He referred, first, to the words of section 282(1) IA 1986 and the decision of the Court of Appeal in Owo-Samson v Barclays Bank plc (No. 1) [2003] EWCA Civ 714 in which it was said, at paragraph 35:

He referred to Guinan, as above, and to JSC Bank of Moscow v Kekhman and others [2015] EWHC 396 (Ch) in which Morgan J said at paragraph 74:

The deputy judge concluded at paragraph 77:

In relation to whether “exceptional circumstances” had to be shown in order to decline to annul, he referred to Guinan and the decision of Hildyard J in Mowbray v Sanders [2015] EWHC 296 (Ch) in which he said:

The deputy judge in Khan, at paragraph 104, considered Hildyard J’s judgment as follows:

As to the exercise of the district judge’s discretion, he said at paragraph 112:

I respectfully agree and I am bound by the decision of the deputy judge. I am similarly bound by the Court of Appeal’s decision in Owo-Samson. There is no reason to treat an application to annul an order made on a petition based on a debt for an unliquidated sum differently to an application to annul an order made on a petition based on a disputed debt. In both cases the application is based on the petitioner’s lack of standing to present the petition and the failure to comply with the requirements of the statutory regime. Such applications are of a different character to those concerning the jurisdictional limitations imposed by the recast EU Regulation. The effect of a debtor’s COMI being in a member state other than the UK is to deprive the UK courts of jurisdiction to open main insolvency proceedings and instead to confer jurisdiction on the courts of the debtor’s COMI. Where however the debtor’s COMI is in England and Wales, the debtor is subject to the jurisdiction of the courts here in the sense that a creditor may seek to open main insolvency proceedings here and it is for the courts of this jurisdiction to determine those proceedings. The exercise of the statutory discretion is not fettered by the operation of a regulation that provides that these courts should not be seized of the proceedings at all.

I start from the proposition that where a pre-condition for the presentation of a bankruptcy petition is not met the court should be strongly inclined to annul. Here the fact that the question was not drawn to my attention by leading counsel (not Mr Ashworth) on the Service Out Application or to the attention of the Deputy ICC Judge when making the bankruptcy order makes that argument all the stronger.

There are features of this case that persuade me that it would be wrong for me to annul the bankruptcy order, assuming that I am right that Mr Dusoruth’s COMI was located here. I was satisfied when ordering service out in 2020 that the petitioner had done enough to bring the statutory demand to Mr Dusoruth’s attention in June 2020. I am similarly satisfied having read the evidence of the process server in this case and heard Mr Dusoruth’s oral evidence that he was served with the bankruptcy petition on 14^th October 2020. He did nothing in response to it and he has offered no reason why he could not have engaged with it. He did not seek to set aside the Service Out Order within the time permitted by that order or until some six months after the bankruptcy order was made.

I am similarly satisfied that he received the petition on bankruptcy order itself in November 2020. He did not make the annulment application until 7^th June 2021, having not, according to Mr Khanzada’s evidence in support of the application itself, instructed Mr Khanzada until 20^th May 2021. It was only in Mr Dusoruth’s later evidence, dated 3^rd August 2021, that the petition debt itself was disputed.

Mr Dusoruth thus could have (i) sought to set aside the order for service out of the jurisdiction as provided for in that order (ii) arranged to be represented at the hearing of the bankruptcy petition (iii) alternatively sought an adjournment to allow him to be represented and (iv) made an immediate application to annul. He did not. There must be finality in litigation and appears to me that when a debtor is confronted with a bankruptcy petition he must address his arguments to the court on the day appointed for it to be heard or obtain an adjournment of the date. Section 281 IA 1986 is not a licence to debtors not to engage with a petition and to make their arguments after the event.

That would perhaps not matter so much were it not for the creditor position. Mr Dusoruth is subject to a £4.7 million personal liability under a tax assessment from as long ago as September 2019. That has not been appealed and the time for doing so is long past, nor has it been paid and no evidence has been given that there is any prospect of it being so. Had there been any prospect of Mr Dusoruth meeting that liability I am satisfied that there would have been offers to do so. I can place very little weight on Mr Dusoruth’s own evidence as to his financial position, to the extent that he gave any. The nearest he came was to say that his assets were “tied up in the bankruptcy”. Mr Dusoruth has given no coherent evidence of any ability to discharge that debt and does not appear to have engaged with it at all. A claim for €200 million has been made by the receiver of Orca NV (now called Rolsa NV) and there is a small liability of a little over £20,000 proved for by American Express. Mr Dusoruth had the opportunity to address those claims and his solvency in reply evidence and chose not to do so. On any footing, the fact that there is a personal liability for unpaid VAT in excess of £4.7 million, for which HMRC have proved, that has gone unpaid and apparently unaddressed is clear evidence of insolvency.

I am satisfied that he was insolvent when the petition was presented and remains so, though his lack of cooperation with his trustee makes the position a little less clear, but that lack of cooperation again weighs in the balance against annulling the bankruptcy. As Nugee J noted in Meyden, until a bankruptcy order has been set aside it must be complied with. That includes the obligations of the bankrupt to cooperate with his trustee. The correspondence with Mr Dusoruth’s solicitors makes it clear that their client saw his obligations to provide his trustees with the requested information was contingent on the outcome of this application. That is an entirely incorrect understanding of the position. I cannot safely annul the bankruptcy where there has not been full cooperation with the trustees and there is evidence of insolvency. Bankruptcy is a class remedy and Mr Dusoruth is subject to substantial, and indisputable, liabilities and claims. To annul the bankruptcy now and dismiss the petition would require those creditors, who have been prevented from presenting petitions thus far, to seek a bankruptcy order themselves. The making of an order on a petition presented now would have potential consequences for the scope of any subsequently appointed trustee’s powers – for example the power to set aside antecedent transactions. I am not prepared to do so where there is clear evidence of insolvency.

In the exercise of my discretion I decline to annul the bankruptcy. I would similarly have declined to do so, for the same reasons, had I concluded that Mr Dusoruth had raised a genuine triable issue on the petition debt.

I am satisfied that Mr Dusoruth was served with the statutory demand, the petition and the bankruptcy order. I am satisfied that his COMI was in England and Wales for the purposes of the recast EU Regulation at the date of presentation of the petition and the making of the order. I am not satisfied, in these circumstances, that Mr Dusoruth has met the low threshold for showing that the petition debts are genuinely disputed on substantial grounds. I am unable to accept Mr Ashworth’s arguments as to nature of the petition debts, though I reject Mr Brown’s submissions that they were totally without merit. Neither the American Express Debt nor the Curzon Street Debt were for a liquidated sum. This is, however, a case in which I should decline to exercise my discretion to annul.

The Annulment Application is dismissed.