Stuart Charles Daburn v Persons Unknown & Ors

HIS HONOUR JUDGE PELLING KC:

1. This is the hearing of a return date in relation to worldwide freezing orders granted by Mr. Stuart Ritchie KC sitting at a Deputy Judge of this court on 21st June 2024. By paragraph 3 of his order he directed that there was to be a further hearing in respect of the order at the earliest available date 14 days after service of the order and that it was to be listed for two hours. The relevant respondents, Boxer Cart Ads Limited and Greencode Connection Limited, do not appear and are not represented.

2. The first issue that I need to consider is whether or not appropriate notice was given of this hearing. So far as that is concerned, the solicitors who act for the claimant wrote to each of the relevant defendants on 27th August 2024, including sealed copies of various orders and reamended particulars of claim and also saying that there was to be a return date hearing on 5th September 2024. That letter referred back to letters of 11th July and 23rd July 2024 which were, I think, concerned with the order made by Mr. Ritchie. A similar letter was sent to Greencode dated 23rd August, saying precisely the same thing.

3. There was no formal application notice for the return date. It is submitted by Mr. Reid on behalf of the claimants, and I am prepared to accept for these purposes, that no formal application notice was required given the terms of the order made by Mr. Ritchie. I am told by Mr. Reid that there has been no response to either of the letters to which I have referred, and I think various e-mails were sent as well, and there has been no bounce back, but no response either. After the hearing, I was informed that there had been bounce Back messages in relation to these emails. I concluded that this made no material difference because (a) neither defendant had engaged with the process following the making of the orders by Mr Richie and both have the ability to apply to vary or set aside the orders I have made in any event.

4. I am going to direct that there should be a further witness statement provided by the claimant’s solicitors, which confirm as correct the information supplied to me by Mr. Reid on instructions which I have just attempted to summarise.

5. In those circumstances I am satisfied this application should proceed on the basis that it is a hearing as directed by Mr. Richie of which all appropriate notice has been given.

6. The second question that then arises is whether or not the order made by Mr. Ritchie should be continued. At the hearing before Mr. Ritchie the evidence was gone into in significant detail for the purposes of demonstrating that the threshold conditions that apply in relation to the grant of worldwide freezing order relief were satisfied. That involved considering first of all that there was a good arguable case on the merits; secondly, that there was a realistic risk of dissipation and, thirdly, that the making of the order was fair, just and reasonable in all the circumstances. There has been no change in the evidence or in the position since the hearing took place before Mr. Ritchie and in those circumstances, I express myself satisfied that these conditions are satisfied for the reasons identified by Mr. Reid when making the initial order.

7. In those circumstances, it is not appropriate that I should do anything else but continue the order, nothing having been drawn to my attention which suggests that the order was wrongly granted or there is any aspect of the material used in support of the application that requires further consideration.

8. In those circumstances, I am prepared to make the order, which is sought which, in effect, is to continue the order previously made by Mr. Ritchie until the trial. So far as costs are concerned, I have directed that costs be in the case. With freezing orders it is not possible to say who has been successful and who has not in any reasonable sense, because the orders are designed to essentially hold the ring until the substantive issues between the parties can be determined at a trial or by agreement.

9. Given that all the evidence has already been served, no useful purpose would be achieved in re-serving the quite voluminous material all over again. Therefore, it is suggested that the undertakings that are given in support of the application should no longer require that there should be copies of the affidavits, exhibits, expert reports and exhibits served. In principle, I am satisfied that that is so, subject to there being service of any additional material which is relied upon by the claimant and has not previously been served, which will inevitably include the witness statement that I have directed should be prepared confirming as correct the information supplied to me by Mr. Reid on instructions.

10. Similarly, there is no need for the claim form to be served again or for there to be any further application notices or the like. However, in accordance with the usual practice, I conclude that there should be a transcript of the hearing and an approved transcript of the judgment supplied to the defendants as and when they became available and therefore there will be an undertaking to serve those documents as soon as reasonably practical.

11. Other than that, the order which is proposed is in a conventional form and follows almost identically the order that was made by Mr. Ritchie. In those circumstances I am prepared to continue the order to trial. (For continuation of proceedings: please see separate transcript) – – – – – – – – – –