[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE]
	England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> LCN Sapphire Trustee 1 Ltd & Anor v Wiseman & Ors [2025] EWHC 1839 (Comm) (17 July 2025) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2025/1839.html Cite as: [2025] EWHC 1839 (Comm)

[New search] [Printable PDF version] [Help]

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL
		17/07/2025

STEPHEN HOUSEMAN KC:

1. By a Part 8 claim form and application notice both issued last December the claimants seek extensive information and disclosure from seven named defendants pursuant to or on the basis of the so-called Norwich Pharmacal jurisdiction as preserved by CPR 31.18.
2. The claimants each held an interest as landlords under commercial leases with a company referred to as AAH. AAH assumed the capacity and responsibility as tenant from its own subsidiary AHL. AAH entered insolvent liquidation in April 2024.
3. D5 and D6 are two of its three joint liquidators. They work at or for D7, a firm which provides insolvency-related services. D2 to D4 were directors of various companies - D2 and D3 were directors of AAH itself; D4 was a director of a related company, Admenta UK Limited. Their precise periods of office in each case are not material. D1 is the sole shareholder and director of various companies, including AAH.
4. The claimants contend that they are sufficiently arguably the victims of an unlawful means conspiracy perpetrated by various entities within the Aurelius group of companies and/or persons associated with them whereby - in effect - AAH was deprived of any financial means of paying rent under the commercial leases and this caused loss to the claimants as lessors. The claimants seek information and disclosure from the defendants in order, it is said, to identify the wrongdoers with precision as well as the nature and extent of their respective wrongdoing.
5. The claimants have now disavowed any case to the effect that AAH is itself the victim of any extraction of assets at an undervalue or that the liquidators are themselves involved in any substantive wrongdoing. The case thesis is that by means of various steps in a corporate restructuring AAH was deliberately left with no means of servicing the leases and this was done with an intention to injure the claimants as lessors.
6. The leases themselves were disclaimed by the liquidators of AAH in April 2024. No rent had been paid for about a year prior to that date. The claimants have since sold the properties.
7. All seven defendants resist the orders sought against each or each set of them on various grounds, although D1 professes to take a neutral position.
8. The principles applicable to Norwich Pharmacal relief are not in dispute. They are summarised in the White Book commentary at 31.18.2 to 31.18.9. The jurisdiction is described as exceptional and flexible. Orders are made to the extent that they are necessary in the interests of justice or to further the interests of justice.
9. There was some debate at the hearing as to whether such relief can be justified in order to enable a putative claimant to identify all of the conspirators said to be liable for the tort of unlawful means conspiracy and/or all of the steps said to constitute or fall within the ambit of such a conspiracy in circumstances where it can be seen that they should already know some of these matters.
10. I was taken to several cases in which Norwich Pharmacal relief has been granted or refused. Every case turns on its precise facts and circumstances.
11. No authority has been identified to me which establishes a proposition of law to the effect that a putative claimant is entitled to obtain information or disclosure through a Norwich Pharmacal order - NPO for short - which confers upon them a superior quality of foresight as to the viability of a proposed claim or prospects of recovery of a future monetary judgment. Litigation is an inherently risky enterprise, as is the process of converting judgments into economic value. A prospective claimant has to assess that risk and take their own course.
12. The role of Norwich Pharmacal relief is to facilitate that risk assessment but not in a way that grants a putative claimant some kind of undue advantage. It is not necessary for a claimant to sue all of the conspirators to an alleged conspiracy either at the outset or by the time of obtaining judgment if they were to prove the elements of the tort. Defendants can be added or removed along the way. The bottom line, as described, is that any order must be necessary in the interests of justice or in order to further the interests of justice.
13. In broad terms, the director defendants (D2 to D4) and liquidator defendants (D5 to D7) contend as follows:

a. Firstly, there is no good arguable case of unlawful means conspiracy in circumstances where both AAH and AHL started out with nil or negligible assets and then ended up in the same predicament.

b. Secondly, there is no justification, still less necessity, for the relief sought in circumstances where (i) the claimants are on the face of things able to identify and sue at least the principal conspirators and (ii) the primary victim of the alleged wrongdoing is a company in liquidation (AAH) and the full facts are being and will be investigated pursuant to that statutory regime.

c. Thirdly, and come what may, there should not be an order as wide and vague as that sought by the claimants, which amounts in effect to a fishing expedition.

14. For his part, D1 says through witness evidence and counsel submissions that its own involvement in the relevant corporate history postdates a significant proportion or portion of the alleged conspiracy and that he has no information documents that he could give in any event.
15. As intimated during the course of the hearing, I have serious doubts as to the sustainability of the alleged conspiracy claim, at any rate based upon the claimants' express disavow of any contention to the effect that AAH is or was the victim of improper value extraction. It strikes me as an attempt to shoehorn admittedly unclear or undocumented events leading to AAH's insolvency into a common law tort claim in circumstances where (i) the claimants are unsecured creditors for unpaid rents and (ii) AAH never had independent means to pay rent in the first place.
16. Put bluntly, the alleged conspiracy amounts to saying that others did unlawfully what they (or others) could have done lawfully at any time, namely stop the source of funds into AAH which enabled it to pay rent under the commercial leases. It also amounts to saying or assuming that no legitimate purpose was served by the corporate restructuring that left AAH in this impecunious and hence insolvent state.
17. All that said, I am prepared to assume for present purposes that such a proposed claim meets the requisite threshold merits standard of a good arguable case.
18. The real problem with the present application is that, by its own terms and internal logic, it presupposes sufficient knowledge on the part of the claimants as to the identity of at least one or more conspirators and what they are said to have done or orchestrated to constitute such a conspiracy and put it into effect causing the relevant loss to the claimants in the form of unpaid rents.
19. The chief instigators of this plan are said to be companies in what is referred to as the "Aurelius Group". According to structure charts provided to me in the hearing, that is headed by Aurelius GP Partners Limited, which sits above Aurelius Crocodile Limited, Aurelius Fox Limited and Aurelius Elephant Limited. The term "Aurelius Group" is defined in the draft order (as amended) on the present application. The claimants must be taken, therefore, to use that term with sufficient clarity and certainty to justify its use in an order of the court.
20. The claimants originally sought pre-action disclosure against various entities on the basis of a potential claim under sections 423 to 425 of the Insolvency Act 1986 in respect of AAH's asset position. They dropped that line of inquiry and made no application. The claimants' solicitors wrote a series of letters dated 7 June 2024 to various entities and individuals as follows or including: Diamond DCO1 Limited, Aurelius Crocodile Limited, Admenta UK Limited, HHG Fox One Limited, AAH Pharmaceuticals Limited, Sapphire 222 Limited, David Bound, Karl-Heinrich Eckartsberg.
21. I cannot see how the claimants can credibly say now that they don't know who to sue or what to allege, even if subject to amendments and additional defendants thereafter. It is not necessary for a claimant to know each and every alleged conspirator nor each and every step said to be taken in furtherance of such conspiracy. The claimants have identified unlawful means, e.g. non-payment of rent under the leases. Intention to injure is to be inferred from all the circumstances, it is no doubt said.
22. Nor is it necessary to know the identities of individuals involved in the corporate decision-making within or on behalf of the Aurelius Group in order to sue them as conspirators. As matters stand, the claimants do know a number of people said by D1 to have given him instructions or communicated with him as named in the draft order. These are Santiago Gonzalez, Patricia Williams and Francesca Costello.
23. I am satisfied that it is not necessary in or to further the interests of justice to require any of the defendants to provide information or disclosure to enable the claimants to 'sharpen up' their proposed conspiracy claim, still less perfect it, before pleading it out in any claim they may decide to commence.
24. Despite Mr McLeod's tenacious and indeed gracious submissions in the face of my expressed reservations, I am not persuaded that the claimants are languishing in the dark as to who they say must have been in this alleged conspiracy or how it was carried out in practical or legal terms. They can start an action if they choose to do so and have a number of years remaining on the limitation period in which to do so.
25. Further than that, and so far as relevant to my decision, it strikes me that the claimants' case thesis necessarily impugns at least D1 and D2 to D4, even if the claimants formally disavow any complicity on the parts of D5 to D7. It is hard to see how the alleged conspiracy did not involve D1 or D2 to D4 in some way given the nature of the allegations made by the claimants. Putting it broadly, if the various restructuring steps did not serve a legitimate purpose, it is hard to see how any of those individuals were discharging their statutory fiduciary duties as directors properly; if they were not, they must or should have understood that something illegitimate was afoot; and their behaviour in that context, according to the logic of the conspiracy thesis, would suggest they were complicit in such coordinated misbehaviour, even if obeying 'superior orders' in the hierarchy of power.
26. This itself would not preclude an NPO being made against these individuals. A person can be mixed up in someone else's wrongdoing innocently or non-innocently. This feature of the analysis nevertheless fortifies my strong inclination that the claimants must know who to sue, at least at the outset, according to the logic of their own conspiracy thesis.
27. For this reason alone I am not persuaded, as I have to be, that Norwich Pharmacal relief is justified as necessary in order for the claimants to identify key alleged wrongdoers and/or wrongdoing so as to make an informed decision about whether to sue in conspiracy within the limitation period.
28. Other objections were raised, principally concerning the interplay between this civil procedural jurisdiction, on the one hand, and the statutory insolvency jurisdiction, on the other hand. If the analysis had got this far it would have been necessary to delve deeper into that interplay and in particular whether it is justified to compel liquidators to hand over information or material obtained by them pursuant to their statutory powers under the Insolvency Act 1986. I can see some force in those objections as a matter of principle, but it is not necessary for me to interrogate them further.
29. The scope of relief sought by the claimants is very wide-ranging indeed. Whether or not it amounts to a 'fishing expedition' is not something that I am required to resolve. What matters is that I am unable to conclude that it is necessary in or to further the interests of justice to make an order of such a kind as against any of these named defendants.
30. As unsecured creditors in the liquidation of AAH, the claimants have a range of rights in that insolvency process. They can hold the liquidators to account if they have grounds for showing that those statutory functions are not being performed properly. They may learn additional details through that process if they decide to hold off suing Aurelius entities or whoever else for conspiracy in the meantime and during the remainder of the current limitation period.
31. That concludes my judgment. It was handed down between 10.00 am and 10.22 am on Thursday 17 July 2025.