Franek Jan Sodzawiczny v Gerald Martin Smith

Dr Smith has issued an application under s.9 of the 1996 Act to stay “all enforcement proceedings instigated by the Defendant as a consequence of [the TPA and Final Award]”. While the application was not on its face limited to enforcement proceedings in the courts of England and Wales, the s.9 power only extends to proceedings in the courts of England and Wales.

In the course of the hearing, I understood Dr Smith to argue that the s.9 stay should extend to Mr Sodzawiczny’s application for AAI relief as well.

For a stay application to be granted, Dr Smith must establish that the enforcement proceedings and the AAI application have been brought “in respect of a matter which under the [arbitration] agreement is to be referred to arbitration” (s.9(1) of the 1996 Act). I shall refer to this as an “Arbitral Matter”.

There is now definitive guidance as to how the court is to identify an Arbitral Matter in the decisions of the Privy Council in FamilyMart China Holding Co Ltd v Ting Chuan (Cayman Islands) Holding Co Ltd [2023] UKPC 33 and of the Supreme Court in Republic of Mozambique v Privinvest Shipbuilding SAL (Holding) [2023] UKSC 32, decisions handed down on the same day, and in which Lord Hodge delivered both judgments.

Applying that guidance, it is clear that the enforcement of the TPA and Final Award is not an Arbitral Matter. The enforcement of arbitral awards is not a matter for the arbitral tribunal (which becomes functus officio to the extent it has issued a final award) but for each court in which enforcement process is commenced: Associated Electric and Gas Insurance Services Ltd v European Reinsurance Co of Zurich [2003] 1 WLR 1041, [9]; London Steamship-Ship Owners’ Mutual Insurance Association (The Prestige Nos 3 and 4) [2021] EWCA Civ 1589. [118-119]; Xiamen Xinjinqdi Group Co Ltd v Eton Properties [2020] HKFCA 32, [120]. In addition, the TPA and Final Awards have been the subject of orders under s.66 of the 1996 Act, such that they are enforceable as judgments of this court. The status of these s.66 orders, and whether they should be stayed, is a matter falling within the exclusive jurisdiction of this court, not a matter which the parties to the Settlement Agreement agreed to refer to arbitration.

I am also clear that the application for an AAI is not an Arbitral Matter. This issue has been the subject of two judgments of this court which I gratefully follow.

In the first, Sheffield United Football Club v West Ham United Football Club Plc [2008] EWHC 2855 (Comm), the claimant sought an AAI to prevent the defendant from challenging the award in an arbitration seated in England and Wales before the International Court of Arbitration in Sport (“ICAS”), an arbitral panel in Geneva. Mr Justice Teare held at [40] that the parties’ arbitration agreement did not extend to “a dispute as to whether the court should exercise its supervisory jurisdiction”:

“Were it otherwise that part of the court's supervisory jurisdiction referred to by Lord Hoffmann would usually be subject to a stay pursuant to section 9 of the Act. Moreover, whilst the parties have agreed that disputes between them should be referred to arbitration they have also agreed, by reason of the seat of the arbitration being England, that the English court is the forum which can exercise a supervisory jurisdiction in support of the arbitration …”

In the second, Nomihold Securities Inc v Mobile Telesystems Finance SA [2012] EWHC 130 (Comm), Mr Justice Andrew Smith undertook a careful analysis of this issue. He accepted that the arbitral tribunal would have jurisdiction to hear and determine at least some of the applicant’s “re-litigation” complaints ([40], [44]), but held that this was not enough “to establish that the legal proceedings brought by Nomihold are in respect of matters ‘to be referred’ to arbitration within the meaning of s.9 of the 1996 Act ([45-46]), noting:

“This expression connotes that the parties agreed that the matters must be referred to arbitration. The objective of s.9 is to ensure that the parties' arbitration agreement is observed and enforced, and a party to an arbitration agreement is entitled to a stay to this end. However, by making the arbitration agreements Nomihold and MTSF also agreed to the supervisory jurisdiction of the English court. So long as its application seeks relief in accordance with that part of the agreements, Nomihold cannot be said to be acting in breach of the arbitration agreements.

The point is explained precisely by Raphael in The Anti-Suit Injunction (2008) in paragraph 7-38, with which I agree … :‘…, although claims that foreign proceedings are in breach of the obligation to arbitrate do generally fall within the scope of arbitration clauses, nevertheless, by contracting for arbitration in England under English law, the parties have impliedly agreed that the usual ancillary proceedings may be brought before the English court to assist and protect the arbitration. These include claims for an anti-suit injunction, which are therefore not a breach of even broadly worded arbitration clauses. This implied agreement operates as an exception to the general scope of the arbitration clause, and permits the court and the arbitrations to exercise a concurrent jurisdiction.’”

In these circumstances, it is not necessary to address Mr Caplan’s alternative argument – that if the enforcement proceedings in this court and the AAI application constituted proceedings brought in respect of an Arbitral Matter, the court should nonetheless refuse the stay application because Dr Smith is not seeking to stay the proceedings for a “real or proper purpose.”

This limitation on the right to apply for a stay is not to be found in s.9 itself, nor in Article II of the New York Convention (although Article II does not address procedural limitations on when a stay might be sought – for example the time limit in s.9(3)). So far as s.9 is concerned, I believe the conventional understanding until recently was as set out by Mr Justice Andrew Smith in N omihold Securities Inc v Mobile Telesystems Finance SA [2012] EWHC 130 (Comm), [34]:

“If MTSF's application is one to which the section applies, the court has no residual discretion to refuse a stay under section 9(4). The only basis upon which a stay can be refused is under the statutory exception because ‘the arbitration agreement is null and void, inoperative, or incapable of being performed’.”

However, there were occasional references to the possibility of some form of discretion to refuse a s.9 stay. In Sheffield United Football Club v West Ham United Football Club Plc [2008] EWHC 2855 (Comm), [41], Mr Justice Teare had referred to the possibility that a stay application based on an arbitration agreement with a seat in this jurisdiction but brought for the purpose of bringing proceedings in another forum altogether “might well be regarded as frivolous or vexatious”, but he noted that “that possibility was not debated before me in terms.” In Lombard North Central plc v GATX Corporation [2012] EWHC 1067 (Comm); [2012] 2 All E.R. (Comm) 1119, [15], Mr Justice Andrew Smith floated the requirement of a “real and proper purpose” as “a possible qualification” to the right to a s.9 stay.

The existence of that qualification has now received support at the highest level of judicial authority, from both the Privy Council in FamilyMart, [64] and the Supreme Court in Mozambique, [52]. The examples given in those cases of the circumstances in which a stay application might lack a “real or proper purpose” include (i) where the application related to “issues that were peripheral to the legal proceedings” (FamilyMart, [64]); and (ii) where the stay applicant would face the same issues in the court proceedings in claims brought by another party even if the claims by one particular claimant were stayed (Mozambique, [110]). This represents a significant and, it is respectfully suggested, controversial development in English arbitration law. The courts have yet to have the opportunity to explore its full ramifications, including the legal basis for such a principle (whether a rule of court process, an implied term of the arbitration agreement or some other basis) and the precise circumstances in which it can avail a court claimant.

Given the technical legal nature of this point, and the fact that Dr Smith is acting as a litigant in person, I have concluded that it would not be appropriate to certify the stay application as totally without merit.

It is well-established that, like anti-suit injunctions (“ASIs”) restraining the pursuit of foreign court proceedings, AAIs can be granted on two grounds:

There are three fact patterns in which AAI applications are usually encountered, each raising different issues.

The first category is essentially the equivalent of the contractual ASI, and the strong presumption in favour of holding parties to their promises is equally applicable. Indeed, there are authorities which suggest that, once the legal right not to be the subject of the arbitration is established to the requisite standard, an AAI may more readily be granted than an ASI:

The most obvious type of case which falls within Category 1 is where the parties have agreed to bring the claim in some other forum (e.g. in court or arbitration under a different set of arbitral rules or with a different seat) or not to arbitrate a particular dispute at all. Thus:

However, there is a further category of AAIs which have been rationalised on the basis that the applicant is protecting a contractual right arising from the agreement to arbitrate, namely where the parties have agreed that an arbitration will have its legal seat in England and Wales, and a losing party then seeks to challenge the award otherwise than in accordance with ss.67 to 70 of the 1996 Act (“a Non-Compliant Challenge”):

It is possible to envisage variations of this approach where the legal right relied upon is not (or not necessarily) contractual:

Allied to these cases are those where the issues raised in the arbitration which is the object of the AAI amount to a collateral attack on the decision of the supervisory court of lack of jurisdiction rather than on a prior arbitral award. This was the position in Republic of Kazakhstan v Istil Group Inc [2007] 2 CLC 870, [46-47], Mr Justice Tomlinson identifying a strong practical reason for AAI relief in this context:

“I am fortified in that view by my conclusion that, were the arbitrators now to proceed to an award on the merits in favour of Istil, the court would be bound to accede to an application to set aside any such award. Furthermore it is the more reasonable for the court to enjoin further pursuit of the arbitration in circumstances where Istil decline to comply with costs orders made in these proceedings both by this court and by the Court of Appeal. If the court were to decline now to intervene it would simply condemn ROK to the expenditure of yet further costs which they may have grave difficulty in recovering having regard to the corporate location of Istil and Metalsukraine and the various corporate reorganisations which have evidently taken place.”

A second category of case is where the AAI applicant contends that the arbitral tribunal would have no jurisdiction to decide the dispute, but without contending that this is because there is a contractual right to have the dispute determined in some other forum:

These developments have led a number of statements by judges suggesting that caution is required before an AAI is granted which would preclude the exercise of the kompetenz-kompetenz jurisdiction of the arbitral tribunal in circumstances in which the court has not already determined that issue (e.g. by finding that the parties had in fact agreed to resolve their disputes in some other forum), and that some additional factor is required to justify AAI relief in these circumstances:

These cases which emphasise that granting an AAI where it is contended that the arbitral tribunal would lack jurisdiction is an exceptional course, all concern foreign-seated references (and indeed in Sabbagh, [112], it was noted that it was “an exceptional course for the English court to decide these issues in relation to an agreement for a foreign-seated arbitration”). The fact that, in such cases, the supervisory court of the arbitral process is a foreign court may raise considerations of comity. However, the suggestion that this provides a basis for adopting a less cautious approach when an AAI is sought in respect of an arbitration seated in England and Wales on the basis that the arbitrators would not have jurisdiction does not sit particularly easily with the following observations of the Court of Appeal in Sabbagh (the first of which now has the support of the Privy Council in Broad Idea, [47] quoted at [65(i)] above):

“109

An anti-arbitration injunction does not involve an interference with the jurisdiction of a foreign court, except in the very indirect way of relieving it of its role as the supervisory court for the arbitration—but that is a role that is entirely dependent on the continuation of the arbitration. There can be no question, in the case of an anti-suit injunction, of the court saying that the foreign court lacks jurisdiction (save in the case of exclusive jurisdiction agreements), whereas the lack of the arbitral tribunal's jurisdiction, because there is no arbitration agreement or because the agreement does not cover the matter in issue, is the basis of an anti-arbitration injunction.

110

An anti-arbitration injunction involves an interference with a different principle, namely the fundamental principle of international arbitration that courts should uphold, and therefore not interfere with, arbitration agreements. Where it is clear that the dispute is within the terms of a valid arbitration agreement, then the courts should not interfere. When the converse is true, ‘either because it is common ground between the parties or because of a previous determination’ (per Andrew Smith J in AmTrust Ltd v Trust Risk Group SpA (No 2) [2015] 2 Lloyd’s Rep 231, para 25), the court may grant an anti-suit injunction but only if the circumstances of the case require it. Save perhaps in the case of exclusive jurisdiction agreements, the grant of an anti-arbitration [injunction] remains an exceptional step.”

That second principle appears to apply as much to arbitrations seated in England and Wales as those seated elsewhere, and in the former case, there is the additional factor of the 1996 Act carefully delineating the gateways for the curial determination of arbitral jurisdiction (see [70(iii)-(vi)] above).

Where there has been no prior determination that the dispute does not fall within the jurisdiction of the proposed or ongoing arbitration, then I am satisfied that the considerations set out above require particular caution before granting an AAI, even in respect of an arbitration seated in England and Wales.

Third, there are cases in which the complaint relates to matters which the arbitral jurisdiction would have jurisdiction to determine, but which it is said involve an attempt to re-litigate matters already determined either by a prior arbitration award or a court judgment:

Where an arbitral tribunal would have jurisdiction to decide whether and to what extent the prior determination precluded the subsequent claim, the granting of an AAI by the court encounters a further obstacle:

It might be possible to confine AAIs in category 3 to cases in which, if a claim had been brought in England and Wales, the court would have refused a stay even though the requirements of s.9 were satisfied because the application was made for an improper purpose. That, however, would tie the exercise of this important jurisdiction to a controversial and embryonic legal principle (see [61]).

An alternative approach, which I find strongly persuasive and which suffices for present purposes, arises from the fact that there will be cases which fall both within category 1 and category 3, because the attempt to re-litigate the contents of the earlier award is sufficiently fundamental and substantial as to be fairly characterised as an attempt to challenge the earlier award by a Non-Compliant Challenge, bringing the principle discussed at [67] above into play.

In these circumstances, and where the English court is the supervisory court for the first arbitral determination, I respectfully agree with Mr Justice Andrew Smith’s insightful decision in Nomihold Securities Inc v Mobile Telesystems Finance SA [2012] EWHC 130 (Comm), [50-51] that this is a case in which the jurisdiction of the supervisory court overlaps with that of the second tribunal in which a plea of legal preclusion might be advanced. This is not the only example of overlapping jurisdiction which arises as between the courts and an arbitral tribunal. This can arise when an arbitral tribunal had granted relief by way of a partial award, the precise effect of which depends on the happening of certain events, and the court has to determine in the context of a s.66 enforcement application whether those events have occurred (A v B [2020] EWHC 2790 (Comm), [27-33]). Some limited form of overlapping jurisdiction may also explain the fact that a defendant to court proceedings who admits the claim will not obtain a stay under s.9, even though an arbitral tribunal would have jurisdiction to issue an award for that claim in the face of a similar admission (Halki Shipping Corporation v Sopex Oil Limited [1998] 1 WLR 726 and in Singapore Tjong Very Sumitomo v Antig Investments Pte Ltd [2009] 4 SLR(R) 732).

The more clearly the claims in the second arbitration can be said to amount, in substance, to a Non-Complaint Challenge to the first award, the stronger the case for AAI relief will be. It is this factor which led Mr Justice Andrew Smith to distinguish in Nomihold between the “most blatantly abusive” parts of the relief sought in the second arbitration and the other matters raised. He would have granted an AAI in respect of the former, but for undertakings:

“not to advance in [the new arbitrations] (a) any claim for a declaration (i) that MTSF is not obliged to carry out [the award] and (ii) that so far as the award is concerned MTSF is not bound by LCIA rule 26.9 or (b) a claim for an order that MTSF be released from any obligation to pay the purchase price of US$179m to be paid under the option agreement.”

Whether the arbitration which is to be the subject of the AAI amounts in substance to a Non-Compliant Challenge to an award seated England and Wales will not turn solely on the manner in which it is formulated (which would enable a party to improve its position by framing its challenge in a misleading or obscure way) but on the substance of the position, to be determined in the light of all relevant circumstances. In Injazat Technology Capital Limited v Najafi [2012] EWHC 4171 (Comm), Mr Justice Flaux was persuaded to grant an AAI inter alia because it was clear that the proceedings were “a transparent attempt to frustrate enforcement proceedings” in relation to the first award ([9], [13] and [22]), even though the injuncted arbitral claim was not expressly framed as a request to set aside the prior award or nullify its effects.

With the benefit of that lengthy legal background, I turn to the position here. I shall first consider the position of Dr Smith, and then that of Dr Cochrane.

I am satisfied that in bringing the Smith RFA, Dr Smith is in substance seeking to bring a Non-Compliant Challenge to the outcome of the Three Awards, and in doing so is infringing Mr Sodzawiczny’s legal right under the 1996 Act that any challenges to the Three Award be brought only by the means, and within the time, permitted by the 1996 Act.

Although Dr Smith was not a party to the Settlement Agreement, he sought and obtained a s.9 stay in respect of Mr Sodzawiczny's claims against him in court, with the benefit of the rights accorded to him by a combination of the Settlement Agreement and the Contracts (Rights of Third Parties) Act 1999. By invoking the right to have any claim brought in an arbitration seated in England and Wales, enforcing it through a s.9 application and then participating as a party in the resultant arbitration, Dr Smith has acceded to the obligation arising from the arbitration agreement not to bring a Non-Compliant Challenge to any the award in the arbitration (i.e. the TPA and the Final Award).

In any event, I am satisfied that Mr Sodzawiczny has a legal right under the 1996 Act that the Three Awards are only challenged under and in accordance with the 1996 Act, and that Dr Smith is seeking to infringe that right by issuing and seeking to pursue the Smith RFA.

I have reached this conclusion for the following reasons:

I am satisfied that these aspects of the Smith RFA amount to a case falling within Category 1 as outlined at [67] above, such that I should grant an AAI in respect of them unless Dr Smith can show strong reasons why I should not do so. I am satisfied that there are no such strong reasons in this case. Indeed in this type of case, it will be even more difficult than in a conventional ASI case to establish reasons why, notwithstanding the clear infringement of the applicant’s legal rights, the court should nonetheless refrain from issuing injunctive relief to protect that right (given the matters in [65] above).

I accept that relief is also sought by Dr Smith in the Smith RFA which does not so directly seek to impugn the Three Awards, and for that purpose, it is necessary to consider a further issue relating to the Smith RFA. Dr Smith is not a party to the Settlement Agreement and the arbitration agreement it contains. He obtained a s.9 stay in respect of the claims brought in the 2018 Proceedings because he was a third party beneficiary of certain promises as an affiliate of some of the signatories, and was able to enforce those provisions and to do so in arbitration, given the width of the arbitration agreement (see [20] above). However, Dr Smith is in significant respects seeking to bring positive claims against Mr Sodzawiczny, not to defend Mr Sodzawiczny’s claims, but to advance a claim in deceit against Mr Sodzawiczny. Subject to the particular claims discussed at [92] below, he has no right to bring such a claim under the arbitration agreement in the Settlement Agreement, and any LCIA tribunal appointed over such claim would have no jurisdiction.

For that reason, and subject to [92] below, all of the claims in the Smith RFA fall into Category 2 as outlined at [70] above – an attempt to assert claims in arbitration over which the arbitral tribunal would have no jurisdiction. It might be said that, in these circumstances, I should leave the issue of jurisdiction to the determination of the arbitral tribunal in the exercise of its kompetenz-kompetenz jurisdiction to the extent that they do not clearly fall within Category 1. However:

There is further relief sought in the Smith RFA which any LCIA tribunal appointed in that reference would clearly have no jurisdiction to grant:

In the particular circumstances of this case, I am also satisfied that it is appropriate to grant an AAI in respect of these claims rather than leave the matter to the kompetenz-kompetenz jurisdiction of any LCIA arbitral tribunal, essentially for the reasons given in [89] above.

That leaves the claims for breach of the agreement not to sue and/or the arbitration agreement, which is said to have been breached by the 2018 Proceedings, and the claim for breach of the non-disparagement obligation said to have arisen from statements made in those proceedings:

That is sufficient to persuade me that I should grant the AAI sought against Dr Smith in respect of the entirety of the Smith RFA. It is not necessary in those circumstances to explore, in the context of this application, whether there might be yet further reasons why AAI relief might, or might not, be appropriate in relation to particular relief in the Smith RFA: for example the consequence of the fact that the claims in the Smith LCIA appear on their face to embrace the counterclaims brought by Dr Smith and Mr McNally in the Second LCIA Arbitration, which were dismissed, and the fact that issues were raised about what is now being described as the alleged Secret Oral Agreement in the course of the Second LCIA Arbitration.

Dr Cochrane is a party to the arbitration agreement in the Settlement Agreement, rather than simply an affiliate with rights under the Contracts (Rights of Third Parties) Act 1999, and she was not a party to the arbitrations resulting in any of the Three Awards. How does this affect the analysis?

In so far as the Smith RFA seeks to challenge the Three Awards, Mr Sodzawiczny has a legal right that those challenges only be brought pursuant to and in accordance with the provisions of the 1996 Act, and Dr Cochrane as a non-party to the arbitrations which culminated in the Three Awards can be in no better position than Dr Smith (indeed, in relation to the Pro Vinci Award, she is in exactly the same position). Further, Dr Cochrane is herself party to an agreement providing for the arbitration of disputes under the Settlement Agreement in LCIA Arbitration with a seat in England and Wales, and I am satisfied this carries with it an implied promise not to bring Non-Compliant Challenges to awards made under that agreement, whether Dr Cochrane was a party to the particular arbitral reference or not.

The clear jurisdictional objection arising in relation to Dr Smith by reason of him not being a party to the Settlement Agreement (see [88] above) does not arise in relation to Dr Cochrane. However a different jurisdictional objection has been raised, namely that Dr Cochrane is en désastre, and has been since 24 November 2016, and on the basis of the unchallenged Jersey law evidence before the court - from Guillaume Staal, a partner in the firm of Dickinson Gleeson and an Advocate of the Royal Court of Jersey – that has the following effect:

On that basis, any right which Dr Cochrane had to bring claims concerning the Settlement Agreement which arose before 24 November 2016 has been transferred to the Viscount, unless she held the right to claim as a trustee (although in that eventuality, Dr Cochrane would be committing a criminal offence under Jersey law by acting as a trustee). This would certainly include the claim for alleged deceit inducing the Settlement Agreement or damages said to flow from misrepresentations said to have been made in the run-up to the Settlement Agreement.

There has been a suggestion made on Dr Cochrane’s behalf by Mr Crossley that Dr Cochrane is advancing claims in the Smith RFA as a trustee. Reliance was placed in this regard on my Directed Trial judgment finding that Dr Cochrane received certain funds under the Isle of Man settlement as trustee for the Orb Claimants, albeit subject at that stage to the beneficial interest of Mr Ruhan which had priority (see Re Smith [2021] EWHC 1272 (Comm), [79], [191]). As to this:

In addition, as I have stated, any LCIA tribunal appointed in that reference would clearly lack jurisdiction to deal with:

It would, once again, be open to me to leave the issue of whether Dr Cochrane retained rights under the Settlement Agreement – including rights to arbitrate any dispute – or whether they were now vested in the Viscount, and the position of the two claims identified in the preceding paragraph, for determination by an LCIA arbitration tribunal appointed pursuant to the Smith RFA as part of its kompetenz-kompetenz jurisdiction. However, in circumstances in which I am satisfied:

What does that leave?

Once again, I am satisfied that the reality is that these assertions are inconsequential fringe claims included within the Smith RFA whose overall purpose is to bring a Non-Compliant Challenge to the Three Awards. If the court were to permit these claims to proceed, it would bring no legitimate benefit to Dr Cochrane but simply provide a vehicle through which Dr Smith (acting in Dr Cochrane’s name) would seek to pursue his idée fixe of challenging the TPA and Final Awards by any means possible.

In this regard, I am satisfied that Dr Cochrane is acting wholly at Dr Smith’s direction and for his purposes in lending her name to the Smith RFA. In the Directed Trial Judgment, [606], I found that:

“Dr Smith has a track record of seeking to disguise his interest in assets behind Dr Cochrane. The investigations brought by the SFO in connection with the Izodia Theft identified a ski chalet held through a corporate vehicle of which Dr Cochrane was a director and the transfer of his luxury car collection into Dr Cochrane's name shortly after the Izodia Theft came to light.

Although notionally assetless, Dr Smith has been able to live ‘high on the hog’ (in his own phrase) off assets notionally owned by Dr Cochrane, spending those assets in accordance with Dr Smith's idiosyncratic tastes (including a commissioned water clock and artwork chosen by Dr Smith) or for his personal benefit (for example on private jet travel, much of which involved Dr Smith travelling alone). While I accept that much of the money spent by Dr Smith belonged to others, the freedom with which he dissipated assets notionally in Dr Cochrane's ownership is relevant when considering whether such interest as Dr Cochrane had in those assets was held in her own right, or as Dr Smith's nominee.

Dr Cochrane has on a number of occasions proclaimed that she is a ‘busy GP with two young daughters and no real business experience’, with minimal knowledge of Dr Smith's business activities. Dr Smith has himself accepted that Dr Cochrane lacked ‘any independent experience of the world of business, the world of property deals’. The vast network of companies which she apparently owns, and the complex web of dealings in which those companies have engaged, strongly support the suggestion that her involvement is nothing more than as a cipher, and that Dr Smith – with his extensive track-record of complex, contrived and dishonest business dealings – is ‘calling the shots’.

Dr Cochrane has no obvious sources of independent wealth from which she might have acquired these assets independently of Dr Smith. In 2005 , according to her own evidence, she was close to destitution, and in 2014 and 2016, she gave accounts of her assets and wealth which identified no substantial assets beyond those transferred under the IOM Settlement.

The confiscation order made against Dr Smith gave him every incentive to hide his ownership of assets behind a nominee owner who he could trust to follow his directions. It is clear that Dr Smith has acted at all times since the Confiscation Order was made with a view to making it appear as if he has no assets – for example his Deed of Separation with Dr Cochrane of 11 March 2014 sought to give Dr Smith all the benefits of certain properties, while transferring no property for the SFO to attach.”

I am satisfied that that is also the position here, and there was no real attempt to argue otherwise.

In these circumstances, I will grant the AAI sought against Dr Cochrane as well.

Much of Dr Smith’s evidence and submissions concentrated on his case that Mr Sodzawiczny had provided a false account of his involvement in the Sentrum project before the Settlement Agreement was entered into, and that Mr Sodzawiczny had acted in breach of fiduciary duty to MTech in relation to that project.

I have not found it necessary to enter into the merits of that dispute, and would be reluctant to do so in circumstances in which there are pending proceedings by MDL against Mr Sodzawiczny in which the court may be required to hear an application.

To the extent, however, that parties to any of the Three Awards wished to contend that those awards were affected by serious irregularity in the form of the award being obtained by fraud or that the way in which the award was procured was contrary to public policy, the means of doing so was a challenge under s.68(2)(g) of the 1996 Act, within the time limit provided for by the 1996 Act or as extended by the court. Dr Smith took advice on whether such an application could now be brought, and was apparently advised it could not. It was Dr Smith who insisted on invoking arbitration in respect of the claims made against him in the 2018 Proceedings when Mr Sodzawiczny had commenced those claims in court. That decision was no doubt seen as bringing certain tactical benefits, but it had legal consequences as well. One of those consequences is that Dr Smith cannot do what he is now seeking to do, namely to challenge the resultant awards by Non-Compliant Challenges.