Frontiers Capital I Limited Partnership v Thomas Flohr

Following the conclusion of these proceedings the defendant, Mr Thomas Flohr, seeks a non-party costs order against Mr Timothy Horlick pursuant to section 51 of the Senior Courts Act 1981.

My decision on this application requires to be read together with the judgments handed down earlier in the proceedings. In my judgment handed down on 28 March 2025 ([2025] EWHC 678 (Ch)), I granted reverse summary judgment on limitation grounds to the defendant on a claim brought against him by Frontiers Capital I Limited Partnership, a limited partnership governed by Limited Partnerships Act 1907, and acting by its general partner, Frontiers Capital General Partner Limited (“FCGPL”), a formerly dissolved Guernsey company, restored to the Guernsey Register of Companies for the purposes of bringing this claim.

At an earlier hearing, I had declined to grant reverse summary judgment on the grounds that the general partner of the claimant had no authority (a) under section 38 of the Partnership Act 1890 to pursue the claim, and/or (b) pursuant to clause 13.5.3 of the limited partnership agreement governing the claimant. In my judgment dated 6 November 2023 ([2023] EWHC 2723 (Ch)), I summarised the claim in this way:

I would also note that the claimant also claimed that Mr Flohr represented to Mr Horlick that he would ensure that €10-20m of annual business would be placed with Comprendium UK, thus ensuring the profitability of that company and that, on the basis of these representations, Mr Horlick entered into an agreement with Mr Flohr which required the latter to pay Mr Horlick 20% of the profits earned on the acquisition of the company known as Comdisco Deutschland GmbH. I explained in my 28 March 2025 judgment why that claim was not sustainable. Mr Horlick had in 2019 issued a personal claim against Mr Flohr in which this alleged agreement featured, which claim was discontinued on 24 May 2022.

The claimant sought to amend the claim in order to add a new claim in deceit, summarised in this way in the March 2025 judgment at [129]:

At the hearing to determine matters consequential on the March 2025 judgment, on 15 October 2025, I ordered the claimant to pay 90% of the defendant’s costs of the claim on the standard basis, with a payment on account of £521,756.87 to be paid by 4pm on 12 November 2025. The costs ordered to be paid to the defendant pursuant to that order remain unpaid.

By an application notice dated 30 April 2025, the defendant sought an order that Mr Timothy Horlick be joined to the claim for the purposes of seeking a costs order against him pursuant to CPR r 46.2. At the consequentials hearing on 15 October 2025, I made an order prospectively joining Mr Horlick in the event that the order for a payment on account of costs was not paid by 27 November 2025 (Mr Horlick having filed a witness statement confirming that the claimant intended to meet any adverse costs order). I also made orders, in that event, for the disclosure by Mr Horlick of documents relating to the consideration which Mr Horlick might receive himself from these proceedings, including in his capacity as liquidator of FCGPL and of classes of material communications between Mr Horlick and/or the claimant and the limited partners of the claimant.

Following the exchange of evidence on the section 51 application, the defendant applied for an order permitting him to cross examine Mr Horlick on his witness statements, and that he attend the hearing for that purpose. By an order made on paper on 2 March 2026, I granted this order. The essential basis of that order was set out in the following paragraphs of my reasons:

I will consider Mr Horlick’s evidence below.

In support of the application, the defendant relies on Mr Horlick’s involvement with the claims pursued in these proceedings, both before they were issued, and thereafter. The relevant chronology in relation to the pursuit of the claim pursued in these proceedings is as follows.

FCGPL was dissolved on 2 November 2010. The claimant partnership itself, which did not have separate legal personality, appears to have been wound up in 2010, with related entities being wound up or dissolved shortly thereafter (see November 2023 judgment at [24]).

In 2013, Mr Horlick instructed Dr Geza Toth-Feher, described in the evidence on behalf of the claimant as a former German lawyer and friend and business partner of Mr Horlick, to write to Mr Flohr, setting out claims which might be made against him. (In cross examination, Mr Horlick indicated that Dr Toth-Feher was not a qualified lawyer.) The first letter, dated 9 September 2013, said ‘the circumstances surrounding these various related transactions may give rise to certain compensation and damage claims that Mr Horlick has against yourself’. The letters, which are described more fully in the March 2025 judgment at [85] onwards, set out claims which it was alleged both the claimant and Mr Horlick had against Mr Flohr. In the March 2025 judgment, I concluded that these letters justified the conclusion that Mr Horlick knew everything that he needed to know in order to cause this claim to be brought. (I further concluded for the reasons set out in that judgment that, if it had continued in existence after 2010, FCGPL could with reasonable diligence have discovered the facts necessary to pursue the claim, and Mr Horlick’s own knowledge was material to that conclusion.)

Mr Horlick indicates in his second witness statement that he approached Mr Nigel Spray, a former director of the Manager of FCILP, in 2018, and that they took legal advice on the mechanisms to determine whether there was a claim and the steps required to bring it on FCILP’s behalf.

Mr Horlick issued his personal claim against Mr Flohr on 5 September 2019. This included a claim on behalf of the claimant, which was later removed by amendment.

Before that claim was issued, the claimant’s solicitors, The Khan Partnership (“TKP”) entered into an engagement letter with a Mauritian company known as Milo Investments Limited (“Milo”), although it was addressed to Mr Horlick and Mr Spray. Milo is owned by Mr Horlick and he is one of its three directors.

On 22 February 2019, Milo had entered into an agreement with Mr Horlick, who was defined in the agreement as “the Shareholder”. The agreement recited that:

The agreement then provided that:

FCGPL was restored to the Guernsey Register of Companies on 4 February 2021. On 8 February 2021, FCGPL passed a written resolution, signed by Mr Spray as director, removing the previous directors and appointing Mr Horlick as director and liquidator of the company, pursuant to s 395 of the Companies (Guernsey) Law 2008, ‘for the purpose of the winding up of the company and the Liquidator’s remuneration be fixed in accordance with the engagement letter in respect of the proposed liquidation of the Company’. Mr Horlick explains that he was the obvious person to provide the necessary instructions to the claimant’s solicitors. It was initially Mr Horlick’s position that the said engagement letter was not disclosable, as it was privileged. It is now his position that it does not exist and that this has been confirmed by Carey Olsen, the firm of Guernsey advocates who advised on and prepared the relevant documentation.

On 16 June 2021, Mr Horlick entered into a damages based agreement with TKP in relation to his claim against Mr Flohr in the discontinued 2019 proceedings and ‘the related claims of’ the claimant against Mr Flohr, said to encompass ‘any and all causes of action that FCILP has against Mr Flohr’. This agreement was amended by a letter dated 14 December 2022.

Mr Horlick’s position as to the financial benefit he would personally receive as a result of the claim, if successful, is set out in his second witness statement at paragraphs 28 and 29, as follows:

The BV referred to above is Frontiers Capital Investments BV (formerly nCoTec Holdings BV), an entity incorporated in the Netherlands, which had a 24% of the Total Commitments made to FCILP, by reference to the limited partnership agreement dated 15 May 2001. Mr Horlick held a 30% interest in the BV at least until 13 May 2009.

Mr Horlick also acknowledges that he would have been entitled to commercial remuneration for his time spent as a director and liquidator of FCGPL, and to benefit from the 8% interest charged by Milo on the loan it advanced to enable him to pay legal fees.

The decision of the Privy Council in Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 WLR 2807 is now recognised as the leading authority on non-party costs orders. At [25], Lord Brown of Eaton-under-Heywood said this:

Then at [29]:

Mr Walker Nolan submits that the appropriate case law by which the application should be approached is that which applies where a section 51 order is sought against a director or liquidator of a company, referred to by Lord Brown in Dymocks at [29]. The relevant test in such circumstances was summarised in Goknur Gida Maddaleri Enerji Imalet Ithalat Ihracat Ticaret ve Sanati AS v Aytacli [2021] EWCA Civ 1037 at [40] (with full references inserted by Ms Patricia Robertson KC, sitting as a Deputy High Court Judge in Asprey Capital Ltd v Rediresi Ltd [2023] EWHC 28 (Comm) at [9]):

I consider that this list sets out certain considerations that are relevant in all cases, in particular that the key criterion is the determination of who is the real party to the litigation, and that there is no checklist of factors to be completed in every case. As Moore-Bick LJ said in Deutsche Bank AG v Sebastian Holdings Inc [2016] 4 WLR 17 at [61]-[62], and noted above, every case turns on its own facts, and that ‘the only immutable principle is that the discretion must be exercised justly’.

It is Mr Flohr’s position that Mr Horlick is the controller and funder of the proceedings. Furthermore, Mr Cohen submits that Mr Horlick is to be regarded as a commercial funder, undertaking the risks of funding the claim in return for a reward out of the proceeds of the litigation if it proved to be successful. Mr Horlick made a decision to take control of FCGPL in order to bring the proceedings, and has not been frank about the financial rewards he anticipated to receive.

As to those financial rewards, the defendant does not accept that Mr Horlick would have received anything as a former investor in the Dutch BV. There is no satisfactory evidence that he remained a member when it was dissolved and it is wrong to suggest that any recoveries would simply be paid to the members of the BV, which no longer exists. In any event, however, Mr Horlick has not explained what he expected to be paid as liquidating trustee of the general partner (whether by approval of the limited partners, however to be granted, or in accordance with clause 8 of the partnership agreement), or as director and liquidator of FCGPL. It is also unclear what will happen to any surplus recoveries, after payment out of Mr Horlick’s (or FCGPL’s) entitlement.

Mr Cohen submits that Mr Horlick and not the former limited partnership is, accordingly, to be regarded as the real party to the litigation. He submits that, from the 2013 Toth-Feher correspondence onwards, Mr Horlick viewed the claim as his. Consistent with that, there was no meaningful consultation with any of the limited partners, and proper attempts to inform them of the proceedings at all were made only in 2024 when compelled by the inability to locate an Investor’s Special Consent (the significance of which is explained in the November 2023 judgment). Mr Cohen also submits that Mr Horlick used the litigation as a vehicle for the airing of his grudge against Mr Flohr as a result of the latter’s success.

First of all, it is uncontested that Mr Horlick was the person who in fact controlled the litigation. He sought to pursue Mr Flohr out of court through the Toth-Feher correspondence of 2013 and then tried first to sue him directly by the 2019 proceedings. Mr Horlick then (with the assistance of Mr Spray) took professional advice and caused FCGPL to be restored to the Guernsey Register of Companies. He then caused himself to become the shareholder of FCGPL, and its director and liquidator. He has provided instructions to TKP and the instructions for the evidence before the court on the applications which I determined was provided by him, as is apparent, e.g. from the second witness statement of Ms Lucy Vials dated 15 November 2022 at paragraph 19.

It is also undisputed that Mr Horlick is to be treated as the funder of the litigation. That funding derived from Milo, a company owned by Mr Horlick on terms that would see the bulk of the proceeds of Mr Horlick’s own entitlement return to Milo. Mr Walker Nolan accepted that he intended to put up the expenses of the litigation.

The gravamen of Mr Horlick’s position is that he was not the real party to the litigation and that he caused FCGPL to pursue it for the benefit of those who had invested in the claimant, and that his personal stake both in the partnership and in these proceedings was only around 7.2% of any recoveries after costs had been recouped. Accordingly, submits Mr Walker Nolan, Mr Horlick’s role should be viewed through the prism of the authorities concerning section 51 orders in the context of directors and liquidators of insolvent companies pursuing claims for the benefit of their company and its creditors. In this case, that means that the claim was pursued for the benefit of the investors in the claimant limited partnership. I accept that a claim pursued through a general partner for the benefit of the limited partners is in principle capable of being viewed in this way.

As I have indicated above, I gave permission to the defendant to cross examine Mr Horlick. Mr Cohen cross examined extensively throughout the morning of the hearing. There were two key themes running through the questioning. The first was that Mr Horlick had been less than forthcoming about the actual financial benefit he expected to receive, and that he caused FCGPL to pursue the claim on behalf of the claimant with an expectation of obtaining a significant personal benefit from the litigation, and greater than that which he was prepared to accept. The second key line of questioning was that he intended to bypass the limited partners and to take as much of the proceeds of the litigation as possible, without any or any proper regard for the entitlement of those limited partners who could not be found or who had ceased to exist. I consider that the defendant has succeeded in establishing the first, but not (at least to the extent that it was suggested that there was an intention to act improperly) the second, of these premises.

The most significant line of questioning concerned the financial benefit which Mr Horlick expected to recover from the litigation. Mr Horlick indicated in cross examination that he would have done the calculations as to whether the risk of bringing proceedings was worthwhile. He indicated that he was entitled to 7.2% of the recoveries, an answer consistent with his witness statements, see at [20] above. When he was asked specifically about the total amount he expected to recover, taking account of his entitlement to remuneration, he repeated the reference to 7.2% of the recoveries and, when pressed, indicated that as he would be paid for his time, the remuneration would not count as profit as he would otherwise have used his time differently (and profitably).

Mr Horlick indicated that he expected to spend around £2 million on the costs of the litigation. When he was asked what he was potentially going to receive back from the action with reference to his remuneration, he then replied that he ‘did not do any calculation’. He similarly indicated that he had no discussion on such matters with his co-directors of Milo when they caused it to enter into the funding agreement with TKP. I considered these answers to be inherently incredible, in so far as they suggested that Mr Horlick had himself made no attempt to calculate the total sum that he would attempt to recover, whether as an (indirect) investor in the claimant, as remuneration as director and/or liquidator or as sole owner of the general partner with an entitlement under the partnership agreement. Mr Horlick’s adult life has been spent in a successful career in the investment banking and investment industries, as explained in Ms Vials’ evidence. The focus of the section 51 application is on the financial benefit that Mr Horlick personally stood to receive from the proceedings. On that key point, his evidence was not credible in so far as he said that he made no attempt to estimate the financial return he expected to receive if the proceedings were successful, which would have been necessary to carry out even a rudimentary cost-benefit analysis.

The evidence in relation to Mr Horlick’s entitlement to remuneration for acting as FCGPL’s liquidator was particularly unsatisfactory. This evidence concerned the 8 February 2021 resolution for payment to Mr Horlick of remuneration for acting as liquidator of FCGPL, which referred to an engagement letter in respect of the proposed liquidation of the company. On that date Mr Horlick signed a sole director’s resolution, referring to ‘the [engagement letter of appointment] in respect of the proposed liquidation of the Company’. In Mr Horlick’s first witness statement, he indicated that the letter of engagement was privileged, and thus objected to allowing inspection of it. TKP later said that the letter could not be found, and later still that it does not exist and that Carey Olsen had not prepared it.

Mr Horlick accepted in cross examination that he knew that a liquidator’s remuneration must be fixed (which is the case in Guernsey and in England). He signed documents referring to the fixing of the remuneration and, given the apparent importance of FCGPL and the fact that local advice had been taken, must have been aware of the issue at the time the documents were signed. He also indicated in evidence that he and Mr Spray had checked their files and did not have a letter of engagement. At one point he indicated that there was an ‘oral agreement’ as to his remuneration, but then clarified that this was ‘loose language’ as he in his capacity as liquidator could not make an agreement with the company as they were effectively one and the same. When he was taken to his second witness statement, where he said that ‘I would be entitled to … remuneration as Liquidator’, he reverted to saying that there was an agreement between FCGPL and the liquidator that he would be paid on a ‘sweat basis’ for the actual time he had spent. He had however kept no records of the time he had spent and would need to take advice at the appropriate time on the rates to be charged.

Mr Horlick’s first and second witness statements acknowledged the entitlement but anticipated not providing the letter of engagement, without explaining the basis on which he was to be remunerated for acting as liquidator of FCGPL. The oral evidence on this subject reiterated the impression I had formed in relation to earlier questions that it was not credible that Mr Horlick had made no attempt to work out what sum he was likely to recover in total. The unsatisfactory nature of this evidence as it unfolded both before and during the hearing leads me to the view that Mr Horlick was not being entirely candid about what he believed on the subject of his remuneration when he embarked on the litigation.

On any view, though, he considered that he had an entitlement to remuneration, to be paid out of partnership assets before distributions to the limited partners, to the extent that payments could be made to them. An issue also arose about the general partner’s entitlement for acting as liquidating trustee. Any such entitlement would pass to Mr Horlick as sole shareholder of FCGPL. Mr Cohen did not pursue a complex argument in his skeleton argument on the construction of the partnership agreement, accepting that the entitlement would be to such sum as Mr Horlick could persuade the other (remaining) limited partners to grant the general partner. In any event, Mr Horlick would likely have some further entitlement beyond remuneration for acting as liquidator of FCGPL and beyond any recovery by virtue of his entitlement as an investor in the BV.

Mr Horlick’s evidence on the question of what would happen to the proceeds of any recovery in the proceedings, in light of the fact that many of the limited partners no longer existed, was revealing. The BV of which he was a member (and I accept his evidence that he remained a member until dissolution) had itself ceased to exist. He took formal advice from Mr Roderick Banks, a barrister specialising in partnership law, and informal advice from Mr Mark Mifsud of Fried Frank, who had been involved in the drafting of the limited partnership agreement (if not its sole draftsman). Mr Cohen suggested to Mr Horlick that Mr Mifsud, not an expert in Dutch law, would not have advised that the proceeds would have been payable direct to the shareholders of the BV, which no longer existed, as Mr Horlick suggested had been advised.

In response to this line of questioning, Mr Horlick replied that the advice at that stage had been only of a general nature, and that the mechanics of how recoveries would fall to be dealt with was a matter for later. To that extent, his response was credible. I do not accept that he was making this evidence up, or that there is any reason to find that he intended to act improperly following any recovery from the defendant. The point, however, is that Mr Horlick saw fit to cause FCGPL to embark on this significant litigation on the basis only of informal advice as to who would be entitled to the recoveries. Mr Cohen put to Mr Horlick that he might have expected that dissolved limited partners would not recover anything and that ‘their’ shares may go to the remaining limited partners. Mr Horlick’s answer was that, ‘if a liquidator could find any way of getting the money back to the limited partner then it would be pro-rated, right?’ It seems to me that Mr Horlick was aware that it might not be possible to get the recoveries back to some of the limited partners and that he might (quite lawfully) be entitled to retain more than the 7.2% interest he has mentioned, in addition to any entitlements to remuneration or under the partnership agreement.

I am fortified in this view by the lack of any real attempt by Mr Horlick to contact the limited partners until he felt compelled to do so by the defendant’s application to strike out the claim on the footing that there had never been an Investor’s Special Consent. It is his evidence that Mr Banks advised him that the limited partners were to be contacted about the litigation. Mr Horlick had a number of informal discussions with individuals who had once been representatives for limited partners, but made no attempt to contact any limited partner directly until 2023. It was only when the spectre arose of a preliminary issue as to the existence of an Investor’s Special Consent, that the claimant’s solicitors contacted each of the remaining limited partners, around half of whom (by reference to their share of the Total Commitments) then confirmed their support for the claim. I consider it material that Mr Horlick was prepared to take significant steps to restore FCGPL and to issue these proceedings without any meaningful consultation with the limited partners and then to pursue them for around two years whilst continuing not to consult. He was not under any obligation to take those steps, or to become the liquidator of FCGPL. That, together with the history over several years of his intimating and pursuing claims against Mr Flohr, suggests to me that he was strongly motivated to cause these proceedings to be pursued for his own purposes, rather than with any primary motivation of seeking compensation for the limited partners as a whole.

A further point relied on by the defendant is the allegation that Mr Horlick has misused the proceedings to air his personal grudge against Mr Flohr. This point must be approached with some care. It arises mainly from the making of serious allegations by the claimant, on Mr Horlick’s instructions, some of which are covered by the confidentiality orders I have made in relation to those allegations, and which are described further in my November 2023 judgment. Those orders remain in force given the dismissal of the claim, but if the proceedings had continued then it may have been necessary to revisit at least some of the provisions of those orders. Some of the allegations covered by the orders are of what is said to be similar fact evidence which the claimant sought to introduce in support of the deceit claim which I did not permit to be introduced into these proceedings. I indicated in my March 2025 judgment that this evidence would potentially be admissible in a separate claim and do not consider that it constitutes litigation misconduct on the claimant’s part. I also declined to permit Mr Cohen to cross examine Mr Horlick on an allegation that he had breached or facilitated a breach of one of the confidentiality orders. This allegation was not properly made in evidence, and was introduced late rather than when evidence in support of the section 51 application was filed in accordance with the court’s directions. Accordingly, I make no finding of misconduct in relation to these matters.

However, I consider that the fact of these allegations, the scale of the evidence in question, and the way in which it was put forward, supports the characterisation of Mr Horlick as the real party to the litigation. In this context, it is highly material that no one else who might have a financial interest in the litigation (i.e. the other limited partners) were said to be involved in the making of these serious allegations or in the gathering of the evidence that was put before the court. A number of lengthy witness statements were put forward in support of the claimant’s amendment application, from individuals who (to put it mildly) had an axe to grind with Mr Flohr, as Mr Horlick clearly does. The temperature of the proceedings was raised significantly by the allegations contained within these witness statements and, ultimately, the claimant was not permitted to rely upon them, at least within the present proceedings. The raising of the temperature in this way was entirely consistent with the way in which Mr Horlick had pursued Mr Flohr since the breakdown in their working relationship, both in relation to his own claim and to that brought on behalf of the claimant.

In this regard, I also consider it to be material that the claimant pursued in these proceedings the allegation that Mr Flohr had agreed to pay Mr Horlick 20% of the profits earned on the acquisition of Comdisco Germany. I explained in the March 2025 judgment why that allegation was liable to be struck out regardless of limitation, as it was not explained why the claimant had standing to rely on the alleged agreement. The raising of this allegation is an example of Mr Horlick using the claim to set out his personal grievances with Mr Flohr, including claims that he had been harmed financially, in a way that did not demonstrably further the interests of the limited partners.

The view I have reached in light of the factors discussed above is that Mr Horlick should be ordered to pay the defendant’s costs of the proceedings. He not only controlled and funded the proceedings, but he stood to benefit financially himself. A funder of litigation who either controls the litigation or stands to benefit personally from it will generally be ordered to pay an adverse costs order (Dymocks at [25]). While the amount which he would eventually have recovered personally if the claim had succeeded would have depended to an extent on matters that would only be known in the future, I do not consider that Mr Horlick has been candid about his own thinking on the subject.

I do not consider that Mr Horlick falls to be viewed merely as a director or liquidator bringing a claim for the benefit of the company and its shareholders and creditors (or, in this case, for the limited partners). He is thus to be viewed as the real party to the litigation.

Mr Horlick sought out appointment as liquidator of FCGPL. He had resigned as a director well before the company was wound up in July 2010, and was under no obligation to cause it to bring these proceedings. He had a vested interest in the litigation succeeding because of his claim to be entitled through the BV and that interest was increased by his right to remuneration and, realistically, to an entitlement through the general partner for acting as liquidating trustee. He was not a pure funder facilitating access to justice: compare Burnden Holdings (UK) Ltd v Fielding [2019] EWHC 2995 (Ch) at [48], Zacaroli J. That would be enough in my judgment to justify the making of a non-party costs order.

The other factors I have discussed above only strengthen this conclusion. The proceedings were the culmination of claims intimated and pursued by Mr Horlick personally, although they were always intimated also on behalf of the claimant. Having issued a claim in his own name, Mr Horlick took steps to have FCGPL restored in Guernsey, to enter into fee arrangements, and to cause the proceedings to be issued. He did all this without any meaningful attempt to contact or to consult with the limited partners, discussing the matter (at least at first) only with individuals who no longer acted on behalf of the limited partners and informing the limited partners meaningfully only when there was a risk of the claim being dismissed for want of authority. He has also caused the claimant to pursue the claim aggressively, including in seeking to introduce a claim of fraudulent misrepresentation supported by substantial evidence from individuals with no financial interest in this claim but with a grievance against Mr Flohr that is shared by Mr Horlick. The agenda pursued within the proceedings was clearly that of Mr Horlick. The claimant’s stance was dictated by the real or perceived benefit to Mr Horlick (whether financial, reputational or otherwise): see Goknur at [40](d).

All of these matters show that Mr Horlick was prepared to persevere to bring these proceedings with his own efforts and his own funds and regardless of whether or not the limited partners themselves wished him to do so. I do not consider that the lack of warning that a non-party costs order would be sought affects the conclusion; a warning would not likely have made a difference (and Mr Walker Nolan did not suggest that it would): see Deutsche Bank AG v Sebastian Holdings Inc at [32].

Standing back, I have no hesitation in concluding that in all the circumstances it would be just to make a non-party costs order against Mr Horlick, and will make such an order accordingly.

I propose to deal with matters consequential on this order on paper. The parties should seek to agree a timetable for the exchange of written submissions.