Appian Capital Advisory LLP v Thomas Gibbs & Ors

Web: www.martenwalshcherer.com MR JUSTICE MARCUS SMITH:

1. I have before me an application by Appian Capital Advisory LLP (the “Applicant”), against two persons: (i) the First Respondent, Mr Thomas Gibbs; and (ii) the Second Respondent, the joint liquidators of Nicholas Abbott (UK) Limited, Mr Simon Bonney and Mr James Varney. The application before me today is one of expedition. I am going to avoid saying anything of substance about the application that is sought to be expedited. The reason I am going to say as little as possible about that is because on one view allegations of considerable seriousness are being moved in support of the substantive application. Let me expand on that a little bit. The proceedings in the King’s Bench Division concern the extraction of information from the Applicant by certain parties in breach of their obligations of confidentiality. The route by which this extraction is said to have occurred involves the company in liquidation, Nicholas Abbott (UK) Limited, and the suggestion is made expressly that the company has been put into liquidation for a collateral purpose, not to distribute the assets of the company (for there are no assets) but to thwart the recovery of the data that the company may or may not have extracted.

2. Thus there are obviously allegations of very considerable wrongdoing on the part of the extractor of the documents but also serious questions as to why the company and how the company was put into liquidation and the conduct of the joint liquidators themselves. Mr Robins KC, for the Applicant, made some play on the fact that the joint liquidators have, albeit apparently taking a neutral stance, declined certain offers of repayment of debts intended to enable the Applicant to obtain control of liquidation because they have no confidence in the liquidators getting in the evidence of records of the company and they want to put in their own forensic team as liquidators themselves or at least as a joint liquidator.

3. So one can see that the underlying allegations in this matter are really ones capable of being of the utmost seriousness. Of course, they may be proven to be unfounded and that is why I want to say little about this.

4. It seems to me, however, that it is clear from the first witness statement of Mr Scherb on behalf of the Applicant that there is objective justification in regard to these matters for the reasons he sets out and for the reasons summarised in the written submissions of Mr Robins KC and Ms Johnson, his junior, and it is therefore clear that there is, in the words of Lord Neuberger, real, objectively viewed urgency requiring this matter to be dealt with extremely swiftly.

5. I have been referred to a recent letter from the solicitors of the joint liquidators, Messrs Farrer & Co, which suggests that there is an improper crossover between the application being made in this division or in the ICC and the King’s Bench proceedings. That is simply incorrect. All one is seeking to do is to ensure that the material that may be relevant in the King’s Bench proceedings is not lost and the appropriate court in this instance for ensuring that the liquidation of the company is properly run is undoubtedly this Division or within it the ICC so I have no sympathy with the points being made in the letter of 4 June 2025 of Farrer & Co. It seems to me that they are making bad points.

6. The first question that I must ask as to whether expedition should be ordered or directed is whether good reason for expedition has been shown by the Applicant. For the reasons I have given, it is clear that this matter must proceed with extreme rapidity. The allegations are very serious, they need to be resolved one way or the other very quickly and the material is very important to be protected both in itself and in order to ensure that the King’s Bench proceedings initiated by the Applicant proceed properly and in accordance with due process. It therefore seems to me that there are real objectively viewed reasons for urgency.

7. I proceed to the second question, whether expedition would be contrary to the good administration of justice. To the contrary, not to grant expedition would be to prejudice the good administration of justice essentially for the reasons that I have given. I have, of course, placed significant consideration on the interests of other litigants in the queue for their cases to be heard. It is obvious that every application for expedition involves a degree of queue jumping and I am alive to that. It does seem to me, however, that it is very important that in this case the queue be jumped.

8. There are, of course, two potential jurisdictions for the hearing of the substantive application: the ICC jurisdiction and the general Chancery jurisdiction. It seems to me both in terms of subject matter and in terms of minimising prejudice to other litigants that this should be before a High Court Judge or a Deputy High Court Judge and not an ICC Judge. I say that, first, because of the seriousness of the points that are being made, whether they be right or wrong, but secondly because it is quite clear that the ICC lists are much fuller than the Chancery Division lists and it is possible without damaging the interests of other parties so greatly to shoehorn this into the High Court lists rather than in the ICC jurisdiction where it is quite clear from the hearing lead times that they are very busy indeed. So I am going to make that direction as to jurisdiction and the appropriate judge to hear matters. Subject to that, it seems to me that the good administration of justice requires expedition.

9. Thirdly, whether expedition would prejudice the other parties in the specific case, I am very alive, as I have made clear in the argument that I have heard from not merely Mr Robins KC but also Ms Macro for the First Respondent and Ms Meyer for the Second Respondent that because of the seriousness of the allegations, it will be very important that an appropriate timetable, expedited but fair, be imposed. We will discuss what that must be but it would be of no prejudice to the parties to have an appropriately expedited timetable and the reason expedition must be granted is because the lead times if expedition is not granted involve a delay of weeks before the application for directions can even be heard in the ICC and literally months and months before the substantive application can be heard. It is quite clear to me that this timetable needs to be short-circuited and that is why I am ordered expedition in advance of discussing the appropriate timetable for the Respondents to deal with the substantive application.

10. The final factor is whether there are any special factors involved. None have been drawn to my attention and I do not see any that indicate that expedition is not the appropriate course. So I am going to direct expedition. I make clear that the bilateral part of the hearing, expedition or no expedition, is now over and we move to the more analogue question, as Meade J put it, of what is an appropriate expedited timetable so that we can ensure that a hearing takes place in accordance with the basic precept of the rule of law and due process. For those reasons, I order expedition but I say nothing more about timetable. Digital Transcription by Marten Walsh Cherer Ltd 2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. DX: 410 LDE Email: [email protected] Web: www.martenwalshcherer.com