Eco Quest Plc v GFI Consultants Ltd & Ors

There are 2 applications before the court: (1) The claimant’s application to continue the injunction and freezing injunction originally granted by Carr J on 8 July 2014 (as varied and most recently extended by the order of HH Judge Seymour QC on 3 October 2014); and (2) an application issued on 19 September 2014 by the second and third defendants to set aside those injunctions on the grounds of material non-disclosure.

The claimant company (“EQ”) was incorporated on 6 June 2012. Its chief executive officer is Mr John Davies, who also owns 75% of its issued shares. According to Mr Davies (Footnote: ¹), “its business model is to provide investment routes into ecologically-friendly projects”.

The first defendant company (“GFI”) was incorporated on 13 April 2010. It traded, inter-alia, as a promoter of unregulated investments in Brazilian forestry (Footnote: ²). The second defendant (“Mr Skeene”) and the third defendant (“Mr Bowers”) were at all relevant times directors of, and shareholders, in GFI (Footnote: ³).

A winding up order was made against GFI on 3 March 2014. Carr J’s order dated 8 July 2014 gave the claimant leave under the Insolvency Act 1986 (“IA 86”) s 130(2) to commence and proceed with this action. Bankruptcy orders were made against Mr Skeene and Mr Bowers by the Croydon County Court on 29 July 2014. Mark Philip Bassford, of Guardian Business Recovery LLP was in each of their cases appointed as Trustee in Bankruptcy (Footnote: ⁴).

The claims made in this action include a claim to trace and recover monies which it is alleged that GFI, Mr Skeene and Mr Bowers hold on trust for EQ. Such trust monies would in any event not form part of the assets available for distribution in GFI’s liquidation, or form part of the bankruptcy estate of Mr Skeene or Mr Bowers. In any event, so far as Mr Skeene and Mr Bowers are concerned, this action involves a claim in fraud: and, under IA86 s 281(3), discharge from bankruptcy would not release Mr Skeene or Mr Bowers from the bankruptcy debt which would arise from that claim, were it to be established. No application has been made under IA86 s 285(2) to stay this action.

Even so, the fact that the property both of Mr Skeene and of Mr Bowers is presently vested in a Trustee in Bankruptcy under IA86 s 306 is a factor that I shall have to consider in more detail at a later stage in this judgment (as is the circumstance that all 3 defendants to this claim have been formally held to be insolvent).

In summary, EQ says that it was deceived, by fraudulent misrepresentations made by or on behalf of GFI, Mr Skeene and Mr Bowers, into investing some GBP 2.2m with GFI for the purpose of acquiring beneficial interests in demarcated plots covering a total of 35.2 ha in an area of Brazilian teak forest known as the Para Sky Plantation.

EQ claims against GFI a declaration that it held and still holds on trust the monies paid to it by EQ. Against Mr Skeene and Mr Bowers, EQ claims damages for deceit. EQ also claims a declaration that, in dealing or causing GFI to deal with the monies paid to it by EQ, Mr Skeene and Mr Bowers acted and are accountable to EQ as constructive trustees. As part of its trust claims, EQ claims against all three defendants consequential accounts, enquiries and orders for payment.

In order to set the scene for dealing with the allegations of non-disclosure made by the second and third defendants, it is necessary for me to go into a little more detail about the claim and its background, and about the defences raised by Mr Skeene and Mr Bowers.

According to Mr Davies (Footnote: ⁵), his initial contact with the defendants was in his capacity as managing director of another of Mr Davies’s companies, Hedge Capital Investment Group Plc (“HCI”). HCI is an unlisted company which, inter-alia, invests in start-up businesses using funds sourced from “small pot” pension savings.

Mr Davies was introduced to GFI’s Global Sales Director, John Fraser, through another of HCI’s clients. At a meeting in Malaga, Spain, on 23 February 2012, Mr Fraser invited Mr Davies to consider investing in a teak plantation at Belem in Brazil, known as “Belem Sky”. Mr Fraser told Mr Davies that the investment was eco-friendly and promised higher than average returns. Mr Fraser also told Mr Davies that the investment scheme was overseen by Title Trustees International (“TTI”) which, by acting as trustee, was effectively guaranteeing that the funds were safe.

After a further meeting in London (at which Mr Fraser told Mr Davies that Mr Fraser’s company, Investment Alternatives Limited (“IAL”) would receive an introducer’s commission if HCI invested in the GFI scheme), and a number of exchanges of correspondence, HCI decided to invest in Belem Sky. On 6 March 2012 HCI purchased plots 1 to 58 of the Belem Sky Plantation for GBP 359,600, which it paid into TTI’s bank account.

Shortly thereafter, the Pensions Regulator began an investigation into the affairs of HCI. This meant that HCI was no longer in a position to access further funds to invest in similar projects. However, Mr Davies did not stop looking for projects in which to invest, albeit using a different investment vehicle. In that connection, Mr Fraser introduced Mr Davies to Mr Bowers and to a Ms Best, another executive of GFI, at a meeting on 14 March 2012. Mr Davies also met Mr Skeene and Mr Bowers on 5 April 2012. At that meeting Mr Skeene and Mr Bowers gave Mr Davies a presentation promoting green investment in the teak plantations at Belem Sky. At a further meeting on 13 April 2012, Ms Best and Mr Bowers provided Mr Davies with a due diligence pack issued by TTI in relation to Belem Sky.

Also according to Mr Davies (Footnote: ⁶), it was shortly after that 13 April 2012 meeting - probably at a meeting on 23 April 2012 – that he proposed making an investment in a Brazilian teak plantation that was not part of the Belem Sky scheme. Mr Davies’s reason for this was to cut out TTI, and so to avoid paying its fee of 2.5% for acting as trustee.

Discussions about this potential new investment continued through May and June 2012. At some point, Mr Davies told Ms Best Mr Bowers and Mr Skeene that he was looking to incorporate a new company with a view to investing something of the order of GBP 2m per month. EQ was in fact incorporated (as recorded above) on 6 June 2012. Also at some point in these discussions, Ms Best and Mr Bowers told Mr Davies that they had another Brazilian plantation, called Para Sky, which could be set up for investment without involving TTI as trustee.

By early July 2012, Mr Davies was seriously considering a significant investment by EQ in Para Sky. On 4 July 2012, he sent an email to Ms Best hoping to set up a meeting the following day.

According to Mr Davies (Footnote: ⁷), he had a meeting with Ms Best, Mr Bowers and Mr Skeene on 5 July 2012, in the downstairs meeting room at GFI’s offices in St Clements Lane, and it was at that meeting that the first of the three sets of what EQ alleges to have been fraudulent misrepresentations came to be made.

This first set of alleged mis-representations is pleaded in paragraph 11 of the Particulars of Claim. That paragraph states that:

At that meeting [on 5 July 2012] Mr Skeene and/or Mr Bowers:

11.1

told Mr Davies that they already held an option to buy the entirety of the Para-Sky Plantation;

11.2

told Mr Davies that they would be taking further options in their own names but which would be exercised by Maos Seguras Administracao Agricolla Ltda (“Maos Seguras”);

11.3

told Mr Davies that Maos Seguras was controlled by [GFIC Title Ltd]”

11.4

gave Mr Davies a template “declaration of trust” and “certificate of declaration of trust” each to be executed by GFI once the investment had been made, giving the investor title to the plots bought ..

The second set of alleged misrepresentations is pleaded (in paragraphs 12 and 13 of the Particulars of Claim) as having been made in a “suite of contractual documentation” sent to Mr Davies by email on 12 July 2012 by Ms Best. This suite of documents included a draft of the Para Sky Plantation Corporate Investment Agreement. Paragraph 13 of the Particulars of Claim states that:

The following were material misrepresentations in this agreement.

13.1

A “Plot” would contain “teak trees which are approximately 8 to 9 years into a growth cycle” and would be “demarcated on the ground”

13.2

A “Plot” would be within the “Property”, being the “Para-Sky Plantation” in the state of Para, Brazil and would be held by GFI’s the

13.3

A “Lease” “would be of “the beneficial interests in the Plot and the teak trees thereon”

13.4

GFI would sell the claimant “a Lease in the Plot”

13.5

GFI would warrant that

13.5.1

“It will procure the acquisition of a beneficial interest in the freehold of the Plot after Maos Seguras has purchased the freehold of the plot”; and

13.5.2

“The Plot and all the plots of land surrounding it that are within the Property contain semi mature teak trees planted approximately 8 to 9 years ago”

13.6

The “Price” paid by the Claimant “may be used if needed to purchase the land in which the Plot is situated prior to GFI being able to grant any lease”

13.7

“If the Plot has not been purchased by MS so that it forms part of the Property .. within 6 months of the date of this Agreement, then the [Claimant’s] money paid under .. this Agreement .. shall be returned by GFI

13.8

GFI undertook “to create the Lease after it has been granted the beneficial interest in the freehold of the Plot”

13.9

GFI would thereafter “hold the benefit of the Lease on trust for the [Claimant]” and “issue to the [Claimant] a Certificate of Declaration of Trust which will constitute evidence of the beneficial interest in the Plot. No certificate issued by any other party shall be valid”

13.10

Upon issue of such Declaration of Trust, the Claimant “agrees to grant a long-term sub- lease over the Plot to Maos Seguras which shall assume full responsibility for the management of the Plot”

13.11

“After having held the Lease for a minimum of four years the [Claimant] shall be entitled to exercise an option to surrender it to GFI in consideration for the payment by GFI of the original Price plus 5%”.

Paragraphs 14 to 17 of the Particulars of Claim then set out certain terms extracted from the draft Rental Agreement, the draft Declaration of Trust, and the draft Certificate of Declaration of Trust included in the suite of documents sent to Mr Davies.

It is notable that only the first and third of the first set of pleaded mis-representations is in express terms a representation of past or present fact, and that none of the second set is in express terms a representation of past or present fact.

In relation to both the first and second sets of representations, Mr Prentis (who appears for EQ) relies instead upon the principle that a statement of intention may be looked upon as a misrepresentation of existing fact if, at the time when it was made, the person making the statement did not in fact intend to do what he said, or knew that he did not have the ability to put the intention into effect (Footnote: ⁸). His case, he told me, was that none of the defendants at any time in fact intended to carry through the scheme described in these draft contractual documents.

The principle on which Mr Prentis seeks to rely is a well-established one. However, CPR 16PD 8.2 requires the claimant specifically to set out (inter alia) any allegation of fraud, and to give details of any misrepresentation in the Particulars of Claim. As Buckley LJ said in Belmont Finance Corporation Ltd v Williams Furniture Ltd (Footnote: ⁹), “An allegation of dishonesty must be pleaded clearly and with particularity”. In my judgment, if Mr Prentis wished to rely upon this principle, he should have pleaded expressly that the making of the statement as to future intention pleaded in paragraph 11, and the delivery of the suite of documents pleaded in paragraphs 12 to 17, each amounted to an implied representation as to the defendants’ then intentions. He should also have spelled out precisely what intentions he was alleging that the defendants had (falsely) represented that they then had.

However, a perhaps more fundamental problem with Mr Prentis’s reliance upon this principle is that the Particulars of Claim do not expressly plead, in the Particulars of Falsity given in paragraphs 23 to 27, that the defendants did not at the material time have the intention which Mr Prentis has told me that they represented (in these first two sets of representations) that they then had.

These are deficiencies in a Statement of Case which are capable of cure by an appropriate amendment. However, in an action such as this, where fraud is alleged, it is in my judgment of special importance that the Particulars of Claim should set out clearly and precisely the case which the defendant has to meet. This aspect of EQ’s claim does not fulfil that fundamental requirement: and that is a factor which I take fully into account in favour of Mr Skeene and Mr Bowers.

EQ’s investments in Para Sky were made between 27 July 2012 and 30 November 2012. Over that period, EQ entered into 16 Investment Agreements with GFI to acquire plots covering 35.2 ha in the Para Sky Plantation (Footnote: ¹⁰).

The third set of alleged misrepresentations on which EQ relies is pleaded in paragraphs 20 and 21 of the Particulars of Claim. Those paragraphs are in the following terms:

20.

On the dates identified in Schedule A, in respect of each of the 16 investments GFI send Mr Davies a letter which referred to the Claimant’s investment in the Para Sky Plantation, and enclosed the “fully executed” Investment Agreement and Rental Agreement, the Declaration of Trust, the Certificate of Declaration of Trust and a Map of the Project identifying the Plots acquired. In each case this letter was signed on behalf of GFI by Mr Skeene and Mr Bowers.

21.

Each such letter amounted to a further representation by Mr Skeene and Mr Bowers that the investments referred to had completed in the manner contemplated by the contracts and, in particular, that the Claimant had acquired a beneficial interest in a particular Plot in the Para Sky Plantation, which Plot was of the size and quality contracted. Each such letter was intended by Mr Skeene and Mr Bowers to be relied upon by the Claimant and in the making of subsequent investments was so relied on.

Copies of all of these documents were exhibited by Mr Davies to his first affidavit. The set of documents for each investment made by EQ was in materially identical form. By way of example, the Certificate of Declaration of Trust for the investment made on 27 July 2012 stated as follows:

GFIC Title Ltd hereby certifies that (the “Investor”) [EQ] has invested in the Para Sky Plantation Project in Brazil and has Plot number(s) 80-94 registered in their name.

You hereby have the rights to 1.5 ha of Land, subject to the terms set out in your Investment Agreement

Valid from 27^th of July until The Termination Date

The Declaration of Trust for that investment stated:

We, the undersigned, GFIC Title Ltd .. HEREBY CONFIRM that we are the registered majority shareholders of Maos Seguras Administracao Agricolla Ltda which is the registered legal owner of the Land and which forms part of the Para Sky Plantation Project she is more particularly described in the Investment Agreement

The Plot(s) named and identified overleaf form part of the Properties stop

Further we HEREBY ACKNOWLEDGE AND DECLARE that, pursuant to the Investment Agreement between [GFI] and the Investor named overleaf, we hold the Lease of the said Plot in trust for the Investor, and hereby agree to transfer, pay and deal with the said Plot in such manner as the Investor shall from time to time direct, subject only to the terms of the aforementioned Investment Agreement and Deed of Trust, and payment being made to us for any fees or disbursements which may be necessary arising from or in execution of such directions

EQ’s case, as pleaded in paragraphs 22 to 27 of the Particulars of Claim is (in summary) that - contrary to these representations – neither GFI, nor Maos Seguras, nor Mr Skeene, nor Mr Bowers, was ever registered as the legal owner of the land referred to in these Certificates and Declarations. Neither Mr Skeene Mr Bowers owned or controlled any option to purchase any part of the Para Sky Plantation until 18 September 2012, when Maos Seguras (acting by Mr Skeene and Mr Bowers) contracted to buy the Plantation. However, those contracts were never completed and were formally cancelled on 18 April 2013. In any event, the Para Sky Plantation only ever extended to approximately 22.68 ha.

In October 2014, Mr Skeene and Mr Bowers served their Defence. In broad summary, their pleaded case is as follows:

Mr Bowers, in his third witness statement, supports this case as to the ownership of the Para Sky Plantation by exhibiting transcripts of public deeds of sale and purchase obtained from the Sole Office of Deeds, Land Registry, and Registry of Natural and Legal Persons, Deeds and Documents. According to Mr Bowers “These documents confirm that Maos Seguras did purchase on 18 September 2012 and 26 October 2012 the land for the Para-Sky Plantation” (Footnote: ¹⁶) and that “it is clear from this document .. That the purchase of this land has not been cancelled .. The final step of the transaction is the entry of Maos Seguras’ title on the public register this is expected to take place in the next 10 days (Footnote: ¹⁷)”.

In response to this, EQ’s solicitor, Ms Lelliott, has exhibited to her fourth witness statement a report from a firm of Brazilian lawyers named Peixoto & Lupoli. This report (according to Ms Lelliott) appears to show “that the assertions made by Mr Bowers in his third and fourth witness statements insofar as [concerns] the ownership of [the] Para Sky land cannot be true”. I cannot (and do not need to) resolve that conflict of evidence for the purposes of determining these applications.

However, I should record that, on the morning of the second day of the hearing, Mr Jones (who appears for Mr Skeene and Mr Bowers) produced what appeared on its face to be a copy of a Registration Certificate relating to Lot No 493 at Para Sky. This Certificate was in Brazilian Portuguese, but was accompanied by a certified translation. It referred to a Public Deed of Sale and Purchase dated 18 September 2012 and a Deed Certificate dated 5 December 2014, and purported to record the registration on 11 December 2014 of Maos Seguras as owner of Lot 493.

Since EQ had had no opportunity to investigate the genuineness of this Certificate before it was produced to the court, Mr Prentis invited me to adjourn the hearing and to order Mr Skeene and Mr Bowers to swear and file yet further affidavits, explaining how this registration had been brought about. Mr Jones resisted the suggestion of an adjournment: and since I had already formed the view that I could not (and did not need to) resolve the conflict of evidence about title, I declined to adjourn the applications. However, in fairness to EQ, I can in consequence attach no weight in the defendants’ favour to this belatedly produced document.

In paragraphs 29 and 30 of the Particulars of Claim, EQ relies upon the terms of the Investment Agreement pleaded in paragraphs 13.6 and 13.7 of the Particulars of Claim (Footnote: ¹⁸) as giving rise to a trust of the monies paid by EQ to GFI, either to use those monies to purchase the freehold of the relevant Plot, or to return them to EQ.

In paragraphs 25 to 28 of their Defence, Mr Skeene and Mr Bowers deny the existence of this alleged trust. Their case is that the Investment Agreement “permitted but did not require” the monies paid by EQ to be used for the purchase of the land: and that, in any event, EQ well knew that “40% of all monies paid by the claimant to GFI were to be used to pay the claimant’s sales/marketing agents and/or Mr Davies and/or Taurus [Business Consulting Ltd]” (an entity which the Defence describes as “a company associated with Mr Davies”) (Footnote: ¹⁹).

I note in passing that, if EQ can establish that it was deceived about title to the Para Sky land, it might perhaps be able to establish its trust claim on the alternative basis that it paid those monies under an operative mistake (Footnote: ²⁰).

Against that background, I now turn to consider Mr Skeene’s and Mr Bowers’ application to set aside the injunction and freezing injunction granted by Carr J, on the grounds of material non-disclosure.

The relevant principles, which were not in dispute, are set out in paragraphs 25.3.5 and 25.3.6 of the current Supreme Court Practice (Footnote: ²¹):

.. An applicant who applies for an interim remedy without notice to the respondent is under a duty to .. disclose fully to the court all matters relevant to the application, including all matters, whether of fact or of law, which are, or may be, adverse to it ..

.. if the duty of full and fair disclosure is not observed, the court may discharge the injunction. It is no excuse for an applicant to say that they were not aware of the importance of the matters they omitted to state. Further, where the duty is not observed, the court may discharge the injunction even if after full enquiry the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure ..

.. Such is the importance of the duty that, in the event of any substantial breach, the court strongly inclines towards setting its order aside and not renewing it, so as to deprive the defaulting party of any advantage that the order may have given them ..

Mr Skeene’s and Mr Bowers’ case is that EQ failed to disclose to Carr J three material matters: (1) the fact (which Mr Davies well knew) that a substantial part of the monies paid by EQ to GFI were paid out in commissions, and that at least 27% of the monies went either to Mr Davies or to Taurus, a company with which he was associated; (2) the fact that another company with which Mr Davies was associated, Green Retirement Plan, had invested GBP 1.6m in Para-Sky, but had made no complaint; and (3) the fact that one of the witnesses whose evidence was put before Carr J, a Mr Whale, had been charged with fraud offences in relation to an investment scheme in which Mr Davies’s companies had been major investors.

The substance of Mr Skeene’s and Mr Bowers’ first ground of complaint is that Carr J was not merely not told, but was positively misled, about the extent of EQ’s knowledge (through Mr Davies) of what had happened to the money paid by EQ to GFI. This, Mr Jones argued, was information which would have been of particular significance to Carr J’s decision, since it was this very money that EQ was claiming that GFI held on trust and was seeking to injunct. As Mr Jones also pointed out in argument, the transcript of the hearing before Carr J shows that Mr Prentis was questioned directly on the point by the judge, who asked him “And Mr Davies has no idea whether money has gone?” Mr Prentis’s answer was an unequivocal “no” (Footnote: ²²).

In his fourth witness statement, Mr Bowers produced a number of emails dating from 2012. These emails, he says, have come from the server which held the email accounts of Mr Fraser (Footnote: ²³). According to Mr Bowers, these emails show Mr Davies “arranging from the outset of the Para Sky Plantation scheme the commission structure as to how money from the Alleged Trust Monies was to be distributed among various parties, including Taurus/himself and the sales agents in Spain”. They also show, according to Mr Bowers, Mr Davies’s “intimate involvement with Taurus”, and “his intimate involvement in the payment of commissions to Taurus and others throughout the period when the Alleged Trust Funds were paid” (Footnote: ²⁴).

Notable among the emails produced by Mr Bowers are:

Mr Bowers says that the matters revealed by these emails were not disclosed to Carr J, and that they are material because they show that Mr Davies “is and has always been fully aware as to what happened to at least 27% of the Alleged Trust Money as a significant part of it has gone to Davies himself and/or the rest to entities at his direction” (Footnote: ²⁵).

In paragraph 37 of his first witness statement, Mr Davies says that Mr Bowers’ allegation that he (Mr Davies) personally received commissions in connection with Para Sky is “absolutely false”. He accepts that “it was agreed that 27% of the amount invested will be paid out to introducers and to cover Taurus’s operating costs for providing the compliance structure” (Footnote: ²⁶). However, according to Mr Davies, his role in relation to Taurus was simply to “manage Taurus’s interaction with everyone involved with Para Sky”. So, although he negotiated and made arrangements on behalf of Taurus, he received none of the money paid to Taurus. Mr Davies exhibits to his first witness statement a witness statement from Andrew Moon, who describes himself as the “sole director and shareholder” of Taurus, and who confirms Mr Davies’s account.

I cannot at this stage resolve the factual dispute between Mr Bowers and Mr Davies as to whether Mr Davies personally received any commissions from these transactions. However, even on Mr Davies’s own evidence, it is plain that he was in fact involved in negotiating the payment of commissions to Taurus and acted on Taurus’s behalf, both in those negotiations and in submitting at least one invoice to GFI (though that invoice does not, on its face, appear to relate to the investments made by EQ).

None of these matters was disclosed to Carr J, although (as recorded in paragraph 12 above) it would have been apparent to her that transactions such as these were likely to involve the payment of commissions to someone.

Mr Prentis, for EQ, submits that there are 2 fallacies in Mr Jones’ argument that these matters should have been disclosed. The first of these is the assumption that any commission at all should have been paid in respect of EQ’s investments at any point before Maos Seguras acquired registered title to the land.

In that connection, Mr Prentis points to a later passage in Ms Best’s 5 July 2012 email, in which she says

..we also need to put procedures in place to monitor funds received into the GFI account for Para Sky and to update Taurus accordingly stop once [Mr Skeene and Mr Bowers] confirm that the relevant land has been transferred to Maos Seguras, we will be in a position to immediately release the relevant commissions since TTI will no longer hold the funds ..

Although this email is discussing a structure not in fact used, in which TTI would be acting as trustee, it points – argues Mr Prentis - to an agreed position (whatever the structure) that commission would only be payable once the relevant land had been transferred. Until that point, the common understanding was that the money should continue to be held on trust. Otherwise, Mr Prentis asks rhetorically, how could the money be repaid, in accordance with GFI’s express contractual obligation, if the land was not acquired within 6 months?

Mr Prentis submits that the second fallacy in Mr Bowers’ argument is the assumption that commission in relation to each investment by EQ would be paid directly out of the money paid by EQ in relation to that investment. On the contrary, he says, the bank statements which have now been produced clearly show that there was no direct linkage between the money paid to GFI in relation to any particular transaction and the commission paid out by GFI in relation to that transaction.

In my judgment, Mr Prentis is correct in his submissions on both of these points. The mere fact that Mr Davies knew that commissions would be payable when the land was acquired does not inevitably indicate that he knew what had become of the money paid by EQ in circumstances in which (on EQ’s case) there had been no such acquisition. Nor does the fact that Mr Davies knew that commissions had been paid necessarily mean that he knew what had become of the particular monies paid by EQ. I therefore find that Carr J was not misled by Mr Prentis’s answer. The evidence presently before me does not establish that Mr Davies knew, contrary to Mr Prentis’ answer to Carr J’s question, what had happened to EQ’s money.

However it remains to be considered whether Mr Davies’s admitted failure to disclose his knowledge of the commission structure, his role in setting up that structure, and his detailed knowledge of the payments of commission made by GFI to Taurus, amounted to a material non-disclosure.

Mr Jones argues that these matters would have been directly relevant to the issue of reliance, since the commission structure would have given Mr Davies a personal incentive to go ahead with the transaction, irrespective of the precise state of Maos Seguras’ title to the land at the moment of investment. In that regard, Mr Jones draws attention to Mr Davies’s desire for a structure without the protection for investors of having TTI acting as trustee, and to Mr Davies’ omission to carry out any (or any adequate) due diligence, or to require any independent verification of what he had been told, before making the Para Sky investments. Mr Jones alternatively submits that disclosure of these matters would, at the least, have given Carr J a relevantly fuller picture of the dealings between Mr Davies, Mr Skeene and Mr Bowers, and of the background to these transactions.

As to the first of these arguments, I cannot (as I have already stated) resolve the factual dispute between Mr Bowers and Mr Davies as to whether Mr Davies personally received any commissions from these transactions. Nor do I consider that Mr Davies can properly be criticised for not speculating that Mr Skeene and Mr Bowers might at some stage allege that he had personally received commissions. On that basis, the degree of personal incentive for Mr Davies to press ahead regardless in order to obtain commission for Taurus would have been very small, and would have been wholly outweighed by the prospect of losing EQ’s money. Mr Skeene and Mr Bowers do not allege that this scheme was a conspiracy, in which they and Mr Davies were all implicated, to obtain commissions without delivering any real investment in land: but that is the clear implication of this submission.

I therefore reject Mr Jones’ first argument. As to the second, I bear in mind the wise words of the Slade LJ in Brinks Mat Ltd v Elcombe (Footnote: ²⁷):

.. The practical realities of any case before the court cannot be overlooked. By their very nature ex parte applications usually necessitate the dealing with and taking of instructions in the preparation of repeated drafts in some haste. Particularly in heavy commercial cases, the borderline between material facts and non-material fact may be a somewhat uncertain one while in no way discounting the heavy duty of candour and care that falls on persons making ex parte applications, I do not think the application of the principle should be carried to extreme lengths ..

In my judgment, these matters do not go directly to any of the issues in the case, and do not bear directly on any of the matters which would affect the court’s discretion. I doubt whether any judge hearing a busy list of without notice applications would thank counsel for drawing to the judge’s attention matters of this kind which, at most, might give a fuller picture of the background, but which do not bear directly on any of the matters which the judge has to decide. What is required on an application made without notice is a full and fair presentation, not an exhaustive one.

Taking all of these considerations into account, I am therefore satisfied that EQ did not fail in its duty of full disclosure by omitting to bring these matters concerning the commission arrangements to the attention of Carr J.

I can deal more shortly with Mr Skeene’s and Mr Bowers’ second complaint, which is that Mr Davies failed to draw to Carr J’s attention the fact that the Green Retirement Plan had invested over GBP 1.6 million in Para-Sky, that Mr Davies is “intimately involved” with Green Retirement Plan, and that Green Retirement Plan has not made any similar complaints to those made by EQ.

There is a dispute, which I cannot at this stage resolve, between Mr Bowers and Mr Davies as to the extent of Mr Davies’s involvement with the management of Green Retirement Plan. The existence of Green Retirement Plan, as another investor in Para Sky was in fact brought to the attention of Carr J in paragraph 58 of Mr Davies’s first affidavit. The geographical extent of Green Retirement Plan’s investment was specifically drawn to the judge’s attention while she was being taken to the plot map. The existence of another investor was also briefly mentioned in paragraph 26 of Mr Prentis’s Skeleton Argument.

In my judgment, no further disclosure on this point was required. The issue of whether or not Green Retirement Plan had made a complaint would in any event not have been a relevant consideration for Carr J.

Mr Skeene and Mr Bowers’ third complaint relates to the position of Mr Whale. EQ plainly thought Mr Whale’s evidence was material. Otherwise, EQ would not have put it before Carr J: and there is no dispute that EQ did not tell Carr J that Mr Whale, on whose evidence EQ was relying, was facing trial on an indictment alleging offences of dishonesty.

Mr Whale has subsequently been convicted, following a trial. However, I have to look at the position as it was at the time of the without notice application. At that point, Mr Whale had simply been charged with offences, which he had denied.

In my judgment, that fact should nevertheless have been disclosed to Carr J, given the importance of the contents of the Para Sky Report to the case being presented on that application. It was a material circumstance, which could potentially have affected her evaluation of the reliability of the evidence of an important witness, and so of the strength of EQ’s case.

However, although this was a breach of EQ’s duty of disclosure, it was not a grave one.

Given

That, of course, is not an excuse of any kind for EQ’s breach of duty. However, in considering the consequence of any such breach, it is always necessary for the court to take account of all of the relevant circumstances, including the gravity of the breach, the excuse or explanation offered, the severity and duration of any prejudice caused to the defendants, the overriding objective, and the need for proportionality (Footnote: ²⁸).

As to that, Mr Davies’s evidence is that he believed Mr Whale’s protestations of innocence. Mr Whale had been known to EQ’s Chief Financial Officer, Mr Boot, for some 20 years. Moreover, the evidence now put before the court by Mr Skeene and Mr Bowers itself suggests (I put the matter no higher) that Mr Whale’s evidence was correct in stating that, at the time of the application before Carr J, Maos Seguras was not “the registered legal owner of the Land and which forms part of the Para-Sky Plantation Project” (despite the express statement in the Certificates of Declaration of Trust signed by Mr Skeene and Mr Bowers to that effect).

Taking into account those factors, the factors mentioned in paragraph 65 above, and all the circumstances of this case, it seems to me that this beach of the duty of full and fair disclosure was – exceptionally – sufficiently minor that it would not be in the interests of justice for me to discharge the injunction and freezing injunction on that ground alone.

For these reasons, I shall therefore dismiss the application issued on 19 September 2014 by the second and third defendants to set aside the injunction and freezing injunction on the grounds of material non-disclosure.

I now come to consider EQ’s own application to continue the injunction and freezing injunction until trial or further order.

Again, the principles that I should apply were not in dispute. In relation to the injunction, they are set out in paragraph 15-7 (and following) of Volume II of the Supreme Court Practice:

When an application is made for an interlocutory injunction, in the exercise of the court’s discretion an initial question falls for consideration. That is:

(1)

Is there a serious question to be tried?

If the answer to that question is, “yes”, then two further related questions arise; they are:

(2)

Would damages be an adequate remedy for a party injured by the court’s grant of, or its failure to grant, an injunction?

(3)

If not, where does the “balance of convenience” lie?

In relation to the worldwide freezing injunction, they are set out in paragraph 15-83 (and following) of Volume II of the Supreme Court Practice:

The court may grant an application for a [worldwide freezing order] where the following matters are established:

(1)

the claimant has a good arguable case;

(2)

the claimant has satisfied the court—

(a)

that there are no assets or insufficient assets within the jurisdiction to satisfy his claim; and

(b)

that there are assets without the jurisdiction; and

(3)

there is a real risk of dissipation or secretion of those assets so as to render any judgment which the claimant may obtain nugatory.

In addition, in exercising its discretion the court should consider whether undertakings or provisos, or a combination of both, should be requested or imposed for the purpose of protecting the defendant from oppression and for protecting the position of foreign third parties.

Mr Jones, on behalf of Mr Skeene and Mr Bowers, submits that EQ does not have a good arguable case and/or that there is no serious issue to be tried. He argues that EQ’s misrepresentation case is hopelessly flawed, because (I summarise):

I accept that the contemporary emails strongly suggest that only Ms Best was present on 5 July 2012: but it may be that Mr Davies is mistaken only as to the date of the meeting, not as to whether any meeting with Mr Skeene and Mr Bowers happened at all. That is not a dispute that I can resolve at this stage. There is, however, much more force in Mr Jones’s second point. I have already pointed out what, in my judgment, are the inadequacies of EQ’s pleading in relation to these first two sets of representations.

However, looking at the matter in the round, it seems to me that the facts giving rise to the substance of EQ’s case in relation to Maos Seguras’s lack of registered title at the time of these investments are (just) sufficiently pleaded. That case (as I understand it) is that, by negotiating with EQ in relation to these proposed transactions, by causing or permitting Mr Best as part of those negotiations to send a suite of documents containing copy certificates referring to Maos Seguras as already having “registered legal title”, and thereafter by causing GFI and GFIC Title to enter into these transactions (in the course of which certificates were provided, signed by Mr Skeene and Mr Bowers, stating that Maos Seguras already had registered title), Mr Skeene and Mr Bowers each impliedly represented to EQ at the time of each investment that they honestly believed on reasonable grounds that Maos Seguras had “registered legal title” to the relevant land.

Mr Skeene and Mr Bowers are plainly alive to the fundamental elements that are relied on by EQ in relation to this aspect of the case, since they have responded specifically and in detail, both in their Defence and in their evidence, to the points made concerning the extent of Maos Seguras’ title (if any) to the land. Even though EQ’s pleading of this aspect of the case could have been clearer, it does not seem to me that the lack of clarity has caused Mr Skeene and Mr Bowers any significant prejudice in understanding and addressing the case made against them.

It follows that, in my judgment, there is (just) a sufficiently pleaded case of the making of actionable representations by Mr Skeene and Mr Bowers, and of the untruth of those representations. That case is also, in my judgment, sufficiently supported by the evidence presently before the court to pass the threshold requirement of a “good arguable case”.

As to reliance, it seems to me to be properly arguable on the evidence presently before the court that EQ relied on those alleged representations each time it actually made an investment, and not just at the point at which the Board decided in principle to invest. As to Mr Jones’ other points in relation to reliance, those seem to me to be matters for trial. They are not matters which I can determine simply on the papers at this stage.

In my judgment, EQ therefore gets over the first hurdle of showing that it has a good arguable case of implied misrepresentation, albeit one that could and should be improved by being spelled out with much greater clarity in its Particulars of Claim.

As to EQ’s trust claim, I need say no more than that, for the reasons given in paragraphs 35 to 37 above, this claim seems to me to raise a serious issue to be tried. Given the liquidation of GFI, and the bankruptcy of Messrs Skeene and Bowers, damages would plainly not be an adequate remedy. I will consider the balance of convenience at the same time as I consider the remaining elements in relation to the freezing injunction.

I now turn to the remaining factors: existence of assets, risk of dissipation, balance of convenience, and discretion. It is this aspect of the case that has most troubled me, given that GFI is in liquidation (so that its assets are under the control of its liquidator) and that Mr Skeene and Mr Bowers are both bankrupt (so that their assets as at the date of the Bankruptcy Order have vested in their Trustee in Bankruptcy).

My initial impression, on reading the papers in this case, was that it would be impossible, in those circumstances, for EQ to satisfy the court (as required by the authorities whose effect is summarised in paragraph 72 above) that there are relevant assets on which any freezing injunction can bite or that there is a real risk of dissipation or secretion of those assets. In those circumstances, how could it be proper for the freezing injunction to continue?

However, despite my initial misgivings, Mr Prentis has been able to persuade me that the position is more nuanced than the general principles that I have mentioned might on their face suggest. I accept Mr Prentis’s submission that the Court’s jurisdiction to grant an injunction whenever it appears “to be just and convenient to so do” (Footnote: ²⁹) is unfettered: and that, while it will usually be appropriate to discharge a freezing injunction on the making of an administration, winding up, or bankruptcy order, so that the defendant’s assets can be applied in accordance with the statutory scheme, there may be some circumstances in which that is not the “just and convenient” course.

Having considered the authorities cited in Gee, Commercial Injunctions, at para 3.007, I am satisfied that the true position, as stated there, is that a freezing injunction:

.. can .. be mainained in force even after a winding up order (Footnote: ³⁰)or a bankruptcy order has been made (Footnote: ³¹), provided that its purpose is to preserve the assets held by, or for, the defendant, for the creditors as a whole ..

In addition to the cases cited in Gee, Mr Prentis drew my attention to the decision of Knox J in Polly Peck v Nadir (Footnote: ³²). In that case, Knox J dismissed an application by Mr Nadir under IA86 s 285(2) to stay on the grounds of his bankruptcy (and because concurrent criminal proceedings against him were pending) the proceedings which had been brought against him by Polly Peck (which was itself in Administration). At the time of that application, Mr Nadir was the subject of a worldwide freezing order. Knox J does not appear to have been invited to consider whether that freezing order should continue despite the bankruptcy. However, there is no indication in the reported judgment that that very experienced Chancery judge thought that the freezing order and the bankruptcy order were inevitably incompatible.

The fact that a freezing injunction can be maintained in force even after a bankruptcy order has been made does not, of course, mean that it should be so maintained. However there are, in my judgment, a number of factors which, exceptionally, make it appropriate to continue the freezing order in this particular case.

Bearing in mind that, as I have already found, EQ has established an arguable case of fraud against Mr Skeene and Mr Bowers, these factors each and all reinforce my view that the prudent course – and therefore the just and convenient course - would be to continue the injunction and the freezing injunction until after trial or further order in the meantime.

The freezing injunction must, however, be shaped so that its purpose is to preserve the assets held by or for each of the defendants, for the creditors of that defendant as a whole, and not just for EQ. It must therefore be varied so as to include provisos expressly enabling the Trustee in Bankruptcy to perform his duties for the benefit of the creditors of each defendant as a whole without further reference to this court (Footnote: ³⁴). In particular, there must be provisos permitting the Trustee to give notice under IA86 s 307 or to seek and/or to enforce an Income Payments Order under IA86 s 310.

I would also encourage EQ as soon as possible to formulate and to apply for permission to make suitable amendments to its Particulars of Claim, in order to spell out with much greater clarity the particular implied representations on which it now relies, and to plead (if it wishes to assert) the untruth of each of those representations. If EQ does not do so, and so fails promptly to put its pleaded case in order, it will be open to Mr Skeene and Mr Bowers to invite the court to re-consider, in the light of that failure, the appropriateness of continuing the injunction and the freezing injunction.

For these reasons:

I invite counsel to prepare a Minute of Order giving effect to this judgment, and giving directions for the further conduct of this action.