Adare Finance DAC v (1) Yellowstone Capital Management SA & Anor [2021] EWHC 1680 (Comm) (16 June 2021)

Adare Finance DAC v (1) Yellowstone Capital Management SA & Anor [2021] EWHC 1680 (Comm) (16 June 2021)

There was a minor breach of the duty of full and frank disclosure by the claimant in failing to fully inform the court of the French proceedings seeking a declaration of unenforceability, but this does not justify setting aside the Part 71 order. The court retains discretion as to the scope of the documents order, but ongoing French proceedings and potential unenforceability do not warrant exclusion of French assets from disclosure at this stage. The documents order stands, subject to minor revisions for clarity and proportionality.

Citation
[2021] EWHC 1680 (Comm)
Parties
Claimant: Adare Finance DAC; First Defendant: Yellowstone Capital Management S.A.; Second Defendant: Michel Ohayon
Jurisdiction
England and Wales
Judgment Date
16 June 2021
Procedural Posture
Commercial Court Enforcement Proceedings / Application to Vary/set Aside CPR Part 71 Order
Outcome
Application to vary/set aside the documents order refused; minor revisions to the order permitted.
Legal Topics
CPR Part 71, Judgments Regulation, Disclosure Obligations, International Comity, Asset Disclosure
Civil Procedure Enforcement of Judgments International Law CPR Part 71 Judgments Regulation Disclosure Obligations International Comity Asset Disclosure

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Parties

Adare Finance DAC

Claimant

Yellowstone Capital Management S.A.

First Defendant

Michel Ohayon

Second Defendant

Procedural Posture

Commercial Court Enforcement Proceedings / Application to Vary/set Aside CPR Part 71 Order

Legal Issues

  1. 1 Whether the claimant failed to make full and frank disclosure in the without notice application for a CPR Part 71 order
  2. 2 Whether documents relating to assets in France should be excluded from the disclosure order due to ongoing French proceedings and alleged risk of prosecution under French law
  3. 3 Scope and discretion of the court in ordering production of documents under CPR Part 71

Ratio Decidendi

There was a minor breach of the duty of full and frank disclosure by the claimant in failing to fully inform the court of the French proceedings seeking a declaration of unenforceability, but this does not justify setting aside the Part 71 order. The court retains discretion as to the scope of the documents order, but ongoing French proceedings and potential unenforceability do not warrant exclusion of French assets from disclosure at this stage. The documents order stands, subject to minor revisions for clarity and proportionality.

Court Disposition

Application to vary/set aside the documents order refused; minor revisions to the order permitted.

Orders

  • Second defendant must produce documents relating to his means, including assets in France, by 9 July 2021.
  • Examination to proceed on 26 July 2021.