London Capital & Finance Plc (in Administration) & Ors v Michael Andrew Thomson & Ors

London Capital & Finance Plc (in Administration) & Ors v Michael Andrew Thomson & Ors

The fifth defendant failed to discharge the burden of showing he had no other assets available to meet legal expenses, as required under the Marino test. The court found the claimants' application for a unilateral notice was not permissible under the Land Registration Act 2002, but this did not affect the exercise of discretion regarding the proprietary freezing order. The balance of justice did not favour permitting the defendant to use the proceeds for legal fees or living expenses, as he had already received professional representation at trial and suffered no prejudice from any delay.

Parties
Claimant: London Capital & Finance plc (in administration); Claimant: Finbarr O’Connell, Adam Stephens, Henry Shinners, Colin Hardman and Geoffrey Rowley (Joint Administrators of London Capital & Finance plc); Claimant: London Oil & Gas Limited (in administration); Claimant: Finbarr O’Connell, Adam Stephens, Colin Hardman and Lane Bednash (Joint Administrators of London Oil & Gas Limited); Defendant: Michael Andrew Thomson; Defendant: Simon Hume-Kendall; Defendant: Elten Barker; Defendant: Spencer Golding; Defendant: Paul Careless; Defendant: Surge Financial Limited; Defendant: John Russell-Murphy; Defendant: Robert Sedgwick; Defendant: Grosvenor Park Intelligent Investments Limited; Defendant: Helen Hume-Kendall
Jurisdiction
England and Wales
Judgment Date
07 February 2024
Procedural Posture
Civil / Interlocutory Application Ruling
Outcome
proprietary freezing injunction granted; application for release of funds for legal fees and living expenses refused; application for unilateral notice found impermissible
Legal Topics
Proprietary Freezing Injunction, Unilateral Notice, Release of Funds for Legal Expenses, Land Registration Act 2002, Constructive Trust, Fraudulent Trading
Civil Procedure Property Law Equity and Trusts Insolvency Proprietary Freezing Injunction Unilateral Notice Release of Funds for Legal Expenses Land Registration Act 2002 +2 more

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Parties

London Capital & Finance plc (in administration)

Claimant

Finbarr O’Connell, Adam Stephens, Henry Shinners, Colin Hardman and Geoffrey Rowley (Joint Administrators of London Capital & Finance plc)

Claimant

London Oil & Gas Limited (in administration)

Claimant

Finbarr O’Connell, Adam Stephens, Colin Hardman and Lane Bednash (Joint Administrators of London Oil & Gas Limited)

Claimant

Michael Andrew Thomson

Defendant

Simon Hume-Kendall

Defendant

Elten Barker

Defendant

Spencer Golding

Defendant

Paul Careless

Defendant

Surge Financial Limited

Defendant

John Russell-Murphy

Defendant

Robert Sedgwick

Defendant

Grosvenor Park Intelligent Investments Limited

Defendant

Helen Hume-Kendall

Defendant

Procedural Posture

Civil / Interlocutory Application Ruling

Legal Issues

  1. 1 Whether a proprietary freezing injunction should be granted over the proceeds of sale of property allegedly traceable to the claimants
  2. 2 Whether the fifth defendant should be permitted to use the proceeds of sale to pay legal fees and living expenses
  3. 3 Whether the claimants' application for a unilateral notice was permissible under the Land Registration Act 2002

Ratio Decidendi

The fifth defendant failed to discharge the burden of showing he had no other assets available to meet legal expenses, as required under the Marino test. The court found the claimants' application for a unilateral notice was not permissible under the Land Registration Act 2002, but this did not affect the exercise of discretion regarding the proprietary freezing order. The balance of justice did not favour permitting the defendant to use the proceeds for legal fees or living expenses, as he had already received professional representation at trial and suffered no prejudice from any delay.

Court Disposition

proprietary freezing injunction granted; application for release of funds for legal fees and living expenses refused; application for unilateral notice found impermissible

Orders

  • Proprietary freezing order granted in the terms sought by the claimants (subject to minor details to be resolved).
  • No release of funds from the proceeds of sale for legal fees or living expenses.