Smith, Re (Ruling - Piggott condition) [2017] EWHC 3333 (Comm) (6 December 2017)

Smith, Re (Ruling - Piggott condition) [2017] EWHC 3333 (Comm) (6 December 2017)

The court has no jurisdiction under section 77(7) of the Criminal Justice Act 1988 to extend a restraint order at the instance of a defendant to cover additional property in the hands of third parties; only the prosecutor may seek such an order. Furthermore, Dr Smith failed to show a good arguable case that the assets in question were his realisable property, and any tracing claim was barred by a prior settlement deed.

Citation
[2017] EWHC 3333 (Comm)
Parties
Applicant: Dr Gerald Smith; Respondent: Phoenix & Minardi; Respondent: Harbour II; Respondent: Joint Liquidators; Respondent: Stewarts Law; Respondent: Serious Fraud Office (SFO); Respondent: Receivers
Jurisdiction
England and Wales
Judgment Date
06 December 2017
Procedural Posture
Application for Variation of Restraint Order Under Section 77(7) Criminal Justice Act 1988 / Ruling on Application
Outcome
Application dismissed
Legal Topics
Restraint Orders, Variation of Restraint Orders, Realisable Property, Tracing Claims, Jurisdiction Under Criminal Justice Act 1988
Criminal Law Asset Forfeiture Civil Procedure Restraint Orders Variation of Restraint Orders Realisable Property Tracing Claims Jurisdiction Under Criminal Justice Act 1988

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Parties

Dr Gerald Smith

Applicant

Phoenix & Minardi

Respondent

Harbour II

Respondent

Joint Liquidators

Respondent

Stewarts Law

Respondent

Serious Fraud Office (SFO)

Respondent

Receivers

Respondent

Procedural Posture

Application for Variation of Restraint Order Under Section 77(7) Criminal Justice Act 1988 / Ruling on Application

Legal Issues

  1. 1 Whether the court has jurisdiction under section 77(7) Criminal Justice Act 1988 to vary a restraint order at the instance of a defendant to cover additional property in the hands of third parties
  2. 2 Whether the sum of £20 million transferred by Legion to Phoenix in December 2012 constitutes realisable property of Dr Smith under the Act
  3. 3 Whether Dr Smith has a good arguable case for tracing into the assets in question

Ratio Decidendi

The court has no jurisdiction under section 77(7) of the Criminal Justice Act 1988 to extend a restraint order at the instance of a defendant to cover additional property in the hands of third parties; only the prosecutor may seek such an order. Furthermore, Dr Smith failed to show a good arguable case that the assets in question were his realisable property, and any tracing claim was barred by a prior settlement deed.

Court Disposition

Application dismissed

Orders

  • Application by Dr Smith to vary the restraint order to include additional property is dismissed