Linda Riley v John Aidiniantz & Anor

Master Bowles (sitting in retirement) :

1. The Claimant, Linda Riley (Ms Riley), and the First Defendant, John Aidiniantz (Mr Aidiniantz), have been locked in various forms of litigation for well over a decade; that litigation stemming, primarily, from disputes relating to the management, finances, control and ownership of the Sherlock Holmes Museum, at 239 Baker Street, in London. Although both these parties have had successes and failures in the litigation and have each had the benefit of costs orders in their favour, the net result, as advanced by Ms Riley, is that Mr Aidiniantz owes Ms Riley £493,828.21 in costs, together with interest on that amount and that monies, in their entirety, have been owed since January 2023 and remain entirely unpaid. While that figure is not agreed, or acknowledged by Mr Aidiniantz, it appears to be accepted that, at the least, there are unpaid costs totalling £300,625.24.

2. The Sherlock Holmes Museum has been and is a lucrative tourist attraction. It is owned and controlled by a private company, Rollerteam Limited (Rollerteam). Mr Aidinantz has placed a value on Rollerteam, in this litigation, of £20M. The shares in Rollerteam are currently held by Ms von Ehrenstein. Prior to the share transfers set out in the next paragraph, the one hundred shares in question had been held by Mr Aidiniantz.

3. The current claim and the application with which this judgment is concerned arises out of the movement of those shares, as between Mr Aidiniantz and his wife, Andrea von Ehrenstein (Ms von Ehrenstein), the Second Defendant, on 3 February 2014 and, following a transfer back of fifty of those shares, to Mr Aidiniantz, in December 2014, the re-transfer of those shares, to Ms von Ahrenstein, on 26 April 2016. Both transfers to Ms von Ehrenstein were said to be by way of gift.

4. It is Ms Riley’s claim that the transfer and subsequent re-transfer of the Rollerteam shares to Ms von Ahrenstein, at the dates when those transfers took place, were transactions at an undervalue and were undertaken by Mr Aidiniantz for the purpose of putting his shares in Rollerteam out of the reach of Ms Riley, or such other persons as might be making, or might at some time be making, a claim against him.

5. On that footing, she contends that the court has jurisdiction, under section 423 of the Insolvency Act 1986 ( the Act ), to restore the position to what it would have been if the questioned transactions had not taken place and that, to that end and pursuant to section 425(1) (a) of the Act , the shares should be vested in her, for sale; that being the position which would have arisen if the shares had not been transferred and had been available to be charged, under the Charging Orders Act 1979 , and subsequently sold in order to recoup Mr Aidiniantz’s indebtedness in respect of costs.

6. By way of alternative, Ms Riley contends that, looking at all the circumstances, the court should determine and declare that, the transfers were nominal only and that the beneficial interest in the shares was, at all times, and is, retained by Mr Aidiniantz, such that the shares are available to be charged and sold in repayment of Mr Aidiniantz’s indebtedness in respect of costs.

7. Ms Riley’s claim was issued in the King’s Bench Division in July 2024. It was met by the Defendants’ application for summary judgment and strike out, dated 4 September 2024. The claim and the application have been transferred to and are now proceeding in the Chancery Division. In addition to seeking summary judgment and strike out, the application also seeks the grant of a civil restraint order and, on the footing that the claim is not struck out or dismissed, also seeks security for costs and, in so far as necessary, an extension of time for filing a defence, together with a non-contentious order validating email service.

8. I will deal, relatively shortly, with the points advanced by Mr Aidiniantz, in his own behalf and that of his wife, in respect of strike out. The first of those points is that the claim under section 423 of the Act is time barred.

9. That contention is put forward upon the basis that the limitation period for that claim is six years and that both the share transfers relied upon in respect of that claim were made more than six years before the initiation of these proceedings.

10. With respect to Mr Aidiniantz, who has argued his case with great skill, the point is a bad one. It turns upon whether the section 423 claim is a claim on a specialty and, if so, whether the usual twelve year limitation period, which attaches to claims on specialties, pursuant to section 8 of the Limitation Act 1980 , is reduced, in this case, pursuant to section 8(2) of that Act and, in particular, is reduced, as contended by Mr Aidiniantz, to six years, on the footing that, pursuant to section 9 of the Limitation Act, the section 423 is a claim ‘to recover any sum recoverable by virtue of any enactment’.

11. The short answer to those questions is that the section 423 claim is a claim on a specialty and it is not a claim to recover monies recoverable under statute, such as to carry the reduced (six year) limitation period applicable, under section 9 of the Limitation Act, to such claims.

12. Taking the second question first, the section 423 claim is not, in any sense, a claim to recover monies recoverable under statute. It is not a money claim at all. It is a claim to reinstate, or make available for enforcement, assets wrongfully transferred, or paid away, by a debtor, or potential debtor, to preclude a creditor, or potential creditor from enforcing a present, or a future, indebtedness against those assets. Such a claim, as already stated is not a money claim. Nor are the monies potentially recoverable, by enforcement against the shares in Rollerteam, should the section 423 claim succeed, monies recoverable under statute. Unpaid costs are recoverable under the judgment to which they relate. Section 9 of the Limitation Act 1980 is, in this case, simply of no application.

13. In regard to the first question, the section 423 claim is a claim on a specialty, namely a claim to enforce an obligation under statute, and was so determined by the Court of Appeal, in Hill v Spread Trustee Ltd (see, in particular, paragraphs [2007] 1 WLR 2404 116 and 144 ). Section 9 not being applicable, the limitation period is twelve years and, on that footing and even if time runs from the date of the 2014 share transfer, this claim was not statute barred when commenced in 2024.

14. I add, on this, that, as explained by Sir Martin Nourse, in Hill , at paragraph 148 (a passage the correctness of which Waller LJ was ‘fully persuaded’; (paragraph 152)), that, to complete the section 423 cause of action, there had to be an identifiable applicant, or claimant, capable of advancing the claim. In this case, where the claim is not brought by a trustee in bankruptcy, liquidator or IVA supervisor, section 424 of the Act provides that that person has to be a ‘victim’ of the transaction. Accordingly and on that footing, no cause of action arises until, on the pleaded facts of this case, Ms Riley became a ‘victim’; that is to say became a person adversely affected by the share transfers and by her inability to enforce her costs judgment against the Rollerteam shares, by reason of the share transfers.

15. On that analysis, Ms Riley’s cause of action, arguably, only first arose when sums paid into court, by Mr Aidiniantz, by way of security, pursuant to an order made by Robert Englehart QC, dated 4 th June 2015, as set out and discussed in paragraphs 40 and 41 of this judgment, and latterly, varied by orders of Mann J, dated 2 March 2017 and Warren J, dated 8 June 2017, had been exhausted. The last of the monies in court were paid out, in the sum of £69,495.25 and in reduction of Mr Aidiniantz’s costs liabilities, by Chief Master Marsh’s order of 30 June 2021.

16. Prior to that date Ms Riley could look to the monies paid into court as providing a fund upon which she could draw to recover costs and other liabilities that Mr Aidiniantz had been ordered to pay and was not, in consequence, adversely affected by the share transfers.. After that date, Ms Riley could only recover her costs by enforcement against Mr Aidiniantz’s assets, with the result that she was, or became, adversely affected by the share transfers and, consequentially, a victim of the transaction whereby the shares had been transferred.

17. Be this last as it may, I am in no doubt at all, for the reasons set out in paragraphs 10, 11, 12 and 13 of this judgment, but that the section 423 claim is not time barred by, or in consequence of, the provisions of section 9 of the Limitation Act 1980 .

18. As an alternative submission, Mr Aidiniantz, also, sought to contend that the section 423 claim was an action to enforce a judgment, such that, pursuant to section 24 of the limitation Act 1980 , the claim could not be brought after the expiration of six years from the date when the judgment became enforceable.

19. Mr Aidiniantz’s contention, in that regard, was that his primary costs liability arose pursuant to the costs order made by Robert Englehart QC, sitting as a deputy judge of the Chancery Division, in the proceedings between Rollerteam and Mr Aidiniantz and Ms Riley and her sister, Jennifer Decoteau, which are set out and discussed later in this judgment, at paragraphs 49 to 54, and that the costs order made in those proceedings, although only quantified by way of a final costs certificate, dated 20 June 2022, had become enforceable in December 2016, on the dismissal of his appeal against the deputy judge’s decision in that case, such that an action to enforce the recovery of those costs had become time barred in 2022.

20. The first question arising from the forgoing is whether the section 423 claim, in this case, can properly be regarded as an action to enforce a judgment. While, in many cases and where the relief sought is simply the setting aside of the questioned transaction, such that the property in issue revests in the person who has transferred that property at undervalue and with the requisite intention of putting the property out of reach of creditors, I would not regard a section 423 claim as an action to enforce any judgment that the victim of the transaction might have obtained, but, rather, as an action to enable the future enforcement of such a judgment, I can see that, in this case, the section 423 claim, which calls for the vesting of the Rollerteam shares in Ms Riley and for the sale of those shares for the purpose of the recovery of her costs could well be seen, or regarded, as an action for the enforcement of the judgments that Ms Riley has obtained in respect of her costs.

21. There remains, however, the question as to when those judgments became enforceable and whether, at the time when the section 423 claim was issued, in 2024, six years had elapsed since the judgments for costs, sought to be recovered, had become enforceable.

22. The answer to that question is clear. A judgment for a money sum, such as costs, can only become enforceable when those costs are quantified. An inchoate and unquantified order for costs is not enforceable by action and, in consequence, time can only run, for purposes of limitation, from the date when the costs order is quantified by the appropriate certification (Times Newspapers v Chohan [2001] BPIR 943 ).

23. In this case the costs orders relied upon by Ms Riley, in addition to the final costs certificate, referred to in paragraph 19 of this judgment, all relate to costs determined and quantified in 2021 and 2022. Accordingly, even if the section 423 claim is to be regarded as an enforcement action, for purposes of section 24 of the Limitation Act 1980 , time did not begin to run in respect of that action until, at earliest, 2021 and, in consequence, Mr Aidininatz’s alternative submission does not give rise to a viable limitation defence to the section 423 claim.

24. The second point advanced by Mr Aidiniantz, as justifying the striking out of this claim, is that the claim is precluded by the provisions of a settlement agreement contained in a Tomlin Order, dated 19 April 2013, to which both Ms Riley and Mr Aidiniantz were party.

25. The history and circumstances, which led to the original litigation between Ms Riley and other of her family members and her half-brother, Mr Aidiniantz and which gave rise to the settlement agreement contained in the 19 April 2013 order, together with the history and circumstances of some, but not all, of the further litigation which has flowed from the original litigation are fully set out in my earlier judgment, (the 2023 judgment), and are not, save where necessary, repeated here. That judgment related, primarily to ligation between Rollerteam and Ms Riley to the effect that Ms Riley has been in breach of one of the trusts referred to in paragraph 51 of this judgment, under which a property, Parkgate, referred to in paragraph 52 of this judgment was held, as set out in that paragraph, on trust for Rollerteam. [2023] EWHC 107 (Ch)

26. As appears in paragraphs 25 to 38 of the 2023 judgment, the settlement agreement with which this case is concerned was one of a number of agreements and orders designed to settle the various claims and cross claims which arose, in 2012, as between members of the extended Aidiniantz family, in respect of the Sherlock Holmes Museum. The particular agreement, now in question, was designed to and did settle proceedings brought by Ms Riley and Mr Aidiniantz’s mother, Grace Aidiniantz, in which she asserted a claim to the entire beneficial ownership of the entire share capital in Rollerteam.

27. By that agreement, Grace Aidiniantz, in consideration of the payment of her costs, abandoned all her claims in respect of the share capital of Rollerteam and, together with Ms Riley and her two other children, Stephen Riley and Jennifer Decoteau (all joined to the proceedings for purposes of the settlement), confirmed that, at all times since its incorporation (in 1984), Mr Aidiniantz had been the sole legal and beneficial owner of the shares in Rollerteam.

28. By that agreement and in that context, Grace Aidiniantz and her children, other than Mr Aidiniantz, but including Ms Riley, further agreed that the settlement agreement should stand ‘in full and final settlement of all claims in the proceedings’ and should ‘discharge and bar all such claims (if any)’ that they, or any of them, including Ms Riley, had or might have ‘howsoever arising against’ Mr Aidiniantz and/or Rollerteam ‘concerning the ownership (legal or beneficial) of the share capital of’ Rollerteam, ‘or any claims of whatsoever nature which’ might ‘derive or have derived from such alleged ownership’.

29. The short point, again skilfully advanced by Mr Aidiniantz, is that the current claim concerns the ownership, legal, or beneficial, of the shares in Rollerteam, or is a claim derived from that ownership and that, accordingly, the claim is barred by the provisions of the settlement agreement.

30. I disagree.

31. The settlement agreement and the terms of that agreement relied upon by Mr Aidiniantz must be construed in the usual and now well understood textual and contextual manner established by a series of very well known decisions of the House of Lords and the Supreme Court. It requires the court of construction to carry out a holistic exercise, whereby the court considers the natural and ordinary meaning of the words used, the factual and legal context in which the words have been used, including the context provided by other relevant provisions of the contract in question and the purpose underlying the contract, together, as necessary, with the commercial common sense of the alternative constructions advanced by the parties. The object of the exercise is to determine the intention of the parties, in regard to the provision in question, by reference to what a reasonable person, standing in the shoes of the parties and having the same background knowledge as the parties would have had, would have understood the provision in question to mean.

32. No special rules apply to agreements of the kind now under discussion, often referred to as releases. Specifically and relevantly, it is not in doubt but that parties can, if they so choose, enter into releases which have the effect of excluding further claim, even where those claims are entirely unrelated to the immediate subject matter of the release and even where those claims are not of a kind that the parties would have had in mind at the time and in the circumstances when the release was entered into.

33. Conversely, however, as explained by Lord Bingham, in Bank of Credit and Commerce International SA v Ali , at paragraphs [2002] 1 AC 251 (BCCI) 10 to 17 , there is what Lord Bingham termed a long and salutary line of authority to the effect that, in the absence of clear language the court will be very slow to infer that a party intended to surrender rights and claims of which he, or she, was unaware and could not have been aware. These authorities, as explained by Lord Bingham, in paragraph 17 of BCCI , provide a cautionary principle, which should inform the approach of the court to the construction of agreements such as the present.

34. Applying the principles of construction and adopting the cautionary approach to construction, set out in the foregoing paragraphs, I am satisfied that, objectively construed, the parties to the Tomlin Order and to the settlement agreement annexed to the Tomlin Order had no intention that their agreement should bar Ms Riley’s current claims, or that it should be construed to that effect.

35. I have no doubt at all that no one of the parties to the agreement had litigation of the kind now being advanced by Ms Riley in mind, as at the date of settlement. It follows, adopting Lord Bingham’s cautionary approach, that very clear words would be required to establish that, notwithstanding that fact, the objective intention of the parties was to bar such claims. No such clear words exist.

36. Looked at linguistically and contextually, it seems clear to me that what the parties intended to achieve by the words they used was to bar any future claims which put in question, as between Mr Aidiniantz and the other parties bound by the agreement, Mr Aidiniantz’s legal and beneficial ownership of the share capital of Rollerteam, or which, by challenging that ownership, enabled any of those parties to assert any claim to, or over, assets of Rollerteam, derived from that ownership. The core purpose of the settlement agreement was to confirm Mr Aidiniantz’s ownership of Rollerteam and, correspondingly, the core purpose of the provisions now under discussion was to preclude any direct, or indirect, challenge to that ownership in the future.

37. There is nothing in the language, or context, of the agreement to suggest that the parties intended to go any further than last set out and, certainly, there are no clear words pointing to the agreement being intended to have any extended meaning, or purpose, such as to preclude the present litigation, which, as at 2013, no party to the agreement could possibly have had in mind.

38. In that regard, the words used by the parties in the settlement agreement are not, in my view, at all apt to bar the current litigation. Although the section 423 claim seeks to set aside the transfers of the share capital in Rollerteam, it is not litigation ‘concerning’, in the sense of questioning, Mr Aidiniantz’s legal or beneficial ownership of the shares in Rollerteam. Rather it is litigation founded upon Mr Aidiniantz’s legal and beneficial ownership of those shares and upon his transfers of those shares. Similarly, the beneficial ownership claim, far from challenging, or questioning, or being concerned with Mr Aidiniantz’s legal and beneficial ownership of the shares in Rollerteam, starts from the unquestioned proposition that he has been the legal and beneficial owner of the shares and avers that, despite his purported transfer of the shares to his wife, he remains beneficially and, as beneficial owner, legally entitled to those shares.

39. Mr Aidiniantz seeks to fortify his argument as that the 2013 settlement agreement bars the current claims by reference to what he says is the application of principles of issue estoppel.

40. He draws my attention to litigation between his half-brother Stephen Riley and Mr Aidiniantz in 2020, in which Stephen Riley asserted a claim to a 10% interest in Rollerteam, arising on grounds of proprietary estoppel. That claim was struck out by Chief Master Marsh by an order dated 6 January 2021.

41. The Chief Master’s judgment, striking out the claim, founded itself upon the terms of the settlement agreement with which I am concerned. At paragraph 24 of his judgment, the Chief Master adverted to the fact that the agreement contained a very wide ranging bar to any further claim being brought by the named parties (of which Ms Riley is one) in respect of any interest in the share capital of Rollerteam. Later on, at paragraph 29, the Chief Master adverted to the settlement agreement as presenting Stephen Riley with insuperable difficulties in respect of his claim. The claim was, accordingly, dismissed.

42. Me Aidininantz argues that this decision, in litigation in which Ms Riley was not a party, nonetheless creates an issue estoppel precluding her ability to challenge the proposition that her claims are not precluded by the settlement agreement.

43. I am satisfied that that decision does no such thing. The Chief Master’s decision resolved a different issue than the one with which I am concerned and did so between different parties. No issue estoppel arises.

44. The claim before the Chief Master was a claim of precisely the type which, as I have set out in paragraph 36 of this judgment, the settlement agreement was designed to preclude. The claim did not raise, or touch upon, the issue with which I am concerned, namely the intent, or otherwise, of the parties to preclude claims of a kind that the parties would not have had in contemplation. The fact that the settlement agreement is described by the Chief Master as wide ranging takes the matter nowhere. There is no doubt that the agreement is wide ranging. The question, for me, to which the Chief master’s judgment gives no answer, is whether, notwithstanding that, the agreement has limits and, if so, what those limits are.

45. As regards parties, Mr Aidiniantz, seeks to assert that Ms Riley must be bound by the Chief Master’s determination as being a ‘privy’ of her brother. I can see no basis at all for that contention. There no identity of interest, or of title. She is not advancing an identical claim, or claiming through him, and the fact that she happens to be his brother is not, in this context, remotely material.

46. Finally, on this, a point was made by Mr Aidininantz, by reference to Cohen v Jonesco , that a claim under [1926] 1KB 119 section 423 cannot override a consent order. The settlement agreement is not a consent order. It is an agreement annexed to an order staying proceedings (a Tomlin Order), but the terms of the agreement do not constitute an order of the court. Even if they did, they would not bar the section 423 claim unless, properly construed, the agreement had that effect, As explained in the foregoing paragraphs, neither in point of construction, nor by reason of estoppel, does the agreement have that effect.

47. In the result, the current claims are not barred, or precluded, by the 2013 Tomlin Order, or by estoppel, and this aspect of the Defendants’ application fails.

48. The third and fourth points advanced by Mr Aidiniantz, as justifying the striking out of the current claims also fail.

49. The third point relates to an order, dated 4 June 2015, made by Robert Englehart QC, sitting as a deputy judge of the Chancery Division, in proceedings between Mr Aidiniantz and Rollerteam, as claimants, and M s Riley and her sister Jennifer Decoteau, as defendants, reported at the Englehart [2015] EWHC 1545 Ch ( judgment).

50. The context of that order and those proceedings, as explained in paragraph 51 of the 2023 judgment, was that neither Ms Riley nor Mr Aidiniantz were able to accept the binding nature of aspects of the agreements that had been purportedly made in settlement of the various claims and cross claims identified in paragraphs 25 and 26 of the 2023 judgment. The proceedings, determined by the Englehart judgment and by the order now relied upon by Mr Aidiniantz, were issued by Rollerteam and Mr Aidiniantz, in October 2013, in order to resolve the matters remaining in dispute.

51. In those proceedings, Ms Riley sought to argue, as set out in paragraph 53 of that judgment, that two trust deeds that she had purportedly executed on 11 April 2013 were not the trust deeds that she had actually signed. Mr Aidiniantz sought to argue, as set out in paragraph 52 of that judgment, that save as contained in the various settlement agreements and orders executed in April and May 2013, other aspects of the agreement that he had entered into with Ms Riley, at a meeting on 8 April 2013 and which had been set out in an email of that date (paragraph 29 of the 2023 judgment) were not binding upon him.

52. The consequence of that assertion, had it been true, would have been that he was not obliged to make the payments to Ms Riley and her sister (£1M each) that he had agreed and that, contrary to that agreement, he would not have been personally obliged to reimburse her in respect of mortgage instalments that Ms Riley had been and was paying in respect of a property, referred to in the 2023 judgment as Parkgate, which under the settlement agreements came to be vested beneficially in Rollerteam and which was then occupied by Grace Aidiniantz and other members of the family.

53. The Englehart judgment did not uphold either Ms Riley’s or Mr Aidiniantz’s contentions. The deputy judge held that the two trusts purportedly executed by Ms Riley on 11 April 2013 had indeed been executed by her on that occasion. He held, further, that the agreements which had been proposed and discussed, as between Mr Aidiniantz and Ms Riley, 8 April 2013, taken in conjunction with the documents signed off on 11 April 2013, gave rise to a binding agreement and, having regard to a point argued on behalf of Mr Aidiniantz, as to whether any such agreement fell foul of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 , because it constituted an agreement to dispose of interests in land, that, because the consideration for the agreement, or part of it, was the actual grant of interests in land, under the trusts, rather than an agreement to make those grants, the section 2 point failed.

54. The 4 June 2015 order (sealed, I think, on 5 June 2015) gave effect to the Englehart judgment. It declared the validity of the trusts executed on 11 April 2013. It directed the payment of the sums agreed to be paid to Ms Riley and Jennifer Decoteau (less, in the latter case, £300,000 already paid). It directed an inquiry as to the sums to be paid by Mr Aidiniantz, in respect of, among other things. his promise to reimburse Ms Riley for mortgage instalments she had paid and was paying in respect of Parkgate. It made provision for Mr Aidiniantz to appeal in respect of the section 2 point. It directed that Mr Aidiniantz pay 75% of Ms Riley and Jenifer Decoteau’s costs, to be subject to detailed assessment, and that £250,000 be paid on account.

55. Importantly, for present purposes it directed that, by way of security, or partial security, in respect of his liabilities under the order, including his future liabilities in respect of the inquiry and the detailed assessment of Ms Riley’s and Ms Decoteau’s costs, Mr Aidiniantz should pay into court, by 26 June 2015, a sum of £1.2M, that, on the sale of a property at Albion Mews, the subject of one of the 11 April 2012 trusts and beneficially owned by Mr Aidiniantz, pursuant to that trust, he should pay into court a further £1M and that, if, following that sale, the sum available for payment into court meant that the sum in court was less than £2.2M, he should, within 14 days of the completion of that sale, pay into court, from other sources, an amount such as to bring the sum in court up to £2.2M.

56. Mr Aidiniantz seeks to argue that the deputy judge’s order in respect of security constituted an agreement that the sum provided by way of security was to satisfy the judgment for all purposes, including costs. That is simply wrong. The order did no such thing . It was, as it made clear, an order that a sum, eventually amounting to £2.2M be paid into court as security, or partial security, for the sums ordered to be paid under the judgment, including Mr Aidiniantz’s future liabilities, arising from the inquiry and from a detailed assessment of his costs liability, which had yet to be determined. There is nothing at all in the order to suggest that those liabilities were to be capped at £2.2M, or that £2.2M had been agreed as a sum which would satisfy the entirety of those, as yet not fully determined, liabilities. The point, with all respect, to Mr Aidiniantz, is a bad one.

57. His fourth point, in regard to strike out, is, also, a bad one.

58. Mr Aidiniantz’s contention is that these proceedings fall foul of the principle first espoused by Wigram VC, in Henderson v Henderson (1843) 3 Hare 100 , which precludes parties from raising in subsequent litigation matters which were not, but could and should, have been raised in earlier proceedings.

59. Although initially the principle was seen and described as being an extended form of issue estoppel, or res judicata, it has, at least since the seminal speech of Lord Bingham, in Johnson v Gore-Wood & Co , been regarded, primarily, as a species of abuse of process; the question for determination being whether, having regard to all relevant circumstances, public and private, the party bringing the allegedly abusive proceedings should have raised the matters advanced in those proceedings in earlier proceedings and the ultimate question being whether the recipient of the allegedly abusive proceedings has been improperly ‘twice vexed in the same matter’. [2002] 2 AC 1

60. Mr Aidiniantz’s contention is that the current claims should have been raised alongside the claims raised in the proceedings raised in the Englehart judgment, or, alternatively, alongside further proceedings, issued by Ms Riley, in the Queens Bench Division, in 2020 (Riley and Decoteau v Aidiniantz and Rollerteam), and eventually struck out by Chief Master Marsh in February 2021.

61. There is, again with respect, nothing in Mr Aidiniantz’s contention. There is no question, here, of Mr Aidiniantz being vexed twice in the same matter, in respect of the current claims. These are entirely new claims and not repetitions, or variants, of, or upon, previous claims. In terms of their subject matter, as discussed later in this judgment, they are entirely unrelated to the subject matters of either of the two cases referred to by Mr Aidiniantz, both of which turned, exclusively, upon the agreements arrived at in 2013. There can be no doubt at all that, if Ms Riley had sought to join the current proceedings with either of those proceedings, far from the composite proceedings continuing together, the court would have required them to proceed separately. The current proceedings would not have been determined alongside the proceedings suggested by Mr Aidiniantz, nor should they have been so determined.

62. I turn, next, to the question as to whether these claims, or either of them, are susceptible to summary disposal, pursuant to CPR 24.

63. The principles applied by the court in respect of a summary disposal, or judgment, under CPR 24 are very well understood. A claim can only be summarily dismissed, under Part 24, if the court is satisfied that the claim has no realistic chance of success at a trial. This is a high hurdle, reflected in the fact that a determination that the case will probably fail will not be sufficient to secure the summary dismissal, or disposal of the claim.

64. In making, or seeking to make, that determination, the court must not carry out a mini-trial, on the documents, without disclosure, without oral evidence and without matters being tested by cross-examination. Once it is clear that there are realistic triable issues, as between the parties, such as will, or would, affect the outcome of the litigation, the Part 24 procedure is inappropriate and unavailable.

65. In this case, both in respect of the section 423 claim and the claim that, notwithstanding the share transfers, Mr Aidinantz remained the beneficial owner of the Rollerteam shares, the issue before the court is an issue of intention.

66. In the one case, was Mr Aidiniantz’s intention, that is to say his real and substantial purpose and substantial motivation, when he made the share transfers to his wife, to put the shares out of reach of his creditors, here Ms Riley and, also Ms Decoteau? In the other case, was his intention, when making the transfers, to nonetheless retain beneficial ownership?

67. Relevantly to the latter case and because Mr Aidiniantz made the transfers to his wife, he has the benefit of the presumption of advancement to support his proposition that the shares were gifted to his wife. It remains, however, the case that the ultimate question is one of intention and that, in modern circumstances, very little weight is placed upon the presumption, or, put another way, the presumption is easily rebutted.

68. Issues of this nature are rarely susceptible to summary determination. In the absence of definitive and unquestioned documentary evidence, defining, or explaining, a party’s intention in respect of a questioned transaction, the court is required to explore the circumstances surrounding the transaction, in order to determine the party’s intention, in respect of the transaction, in a way which is, simply, not available in an application under Part 24.

69. This case is a good example of the difficulty of bringing issues of intention within the scope of summary determination.

70. Ms Riley asserts, by her counsel, Mr James, that there is a pattern of circumstances, in this case, such as to show that Mr Aidiniantz’s intention, in respect of the February 2014 share transfer, and then, following the re-transfer to him of half of those shares in December 2014, his further re-transfer of the shares to his wife, in April 2016, was to render the shares unavailable as a medium for the enforcement of Mr Aidiniantz’s liabilities to Ms Riley.

71. He relies upon the correlation, in respect of the original transfer, between the date of that transfer, 3 February 2014. and the date, 13 January 2014, when Ms Riley and Ms Decoteau brought the Part 20 proceedings against Mr Aidiniantz, in respect of the monies unpaid under the agreement which came into being on 11 April 2013, which, eventually resulted in the Englehart judgment.

72. In regard to the re-transfer of half of those shares on 6 December 2014, he submits that, although the December 2014 re-transfer took place during the pendency of those proceedings (the trial commencing in March 2015), no steps could be taken following that judgment to enforce it (hence the order for security) while that judgment was under appeal (permission to appeal having been granted in July 2015) and that, by the time that any enforcement could have taken place, following the dismissal of Mr Aidinantz’s appeal, in December 2016, those shares had already, in April 2016, been re-transferred, such that the entirety of the Rollerteam share capital was again vested in Ms von Ehrenstein.

73. Additionally, Mr James points to the fact that, in March 2017, some three months, only, after the dismissal of his appeal Mr Aidiniantz and Ms von Ahrenstein moved out of the jurisdiction, to Germany, where they now permanently reside and did so, notwithstanding that they had only recently renewed their tenancy of a four bedroomed family home in Highgate. He submits that the move to Germany was part of a broad pattern of behaviour, of which the share transfers were a part, whereby Mr Aidiniantz sought to make himself ‘judgment proof’, or, at the least to place serious difficulties in respect of the enforcement of any judgment.

74. Mr James also places reliance upon what he said to be Mr Aidiniantz’s want of a convincing explanation, in respect of the transfers, and upon the fact that Mr Aidiniantz, while acknowledging his financial capacity to pay the costs in question, has, nonetheless, other than out of the sums secured by the Englehart order, chosen to make no payments in respect of, or towards, those liabilities. In that latter regard, he submits that Mr Aidiniantz conduct demonstrates an unwillingness to meet his labilities and that, in that context, the transfer of the Rollerteam share capital can be seen as forming part of a design to prevent payment, by precluding enforcement.

75. Ms Riley’s alternative case is that the transfer of shares, while carried out for the purpose of precluding, or preventing enforcement against the shares, was, in truth, no more than a nominal transfer of the shares, which were, at all times beneficially retained by Mr Aidiniantz and controlled by Mr Aidinantz. There was, it is submitted, no intention that Ms von Ehrenstein should actually become the beneficial owner of the shares.

76. In support of that submission, or contention, Mr James relies, primarily, upon two matters. Firstly, he says that the way that half the shares were moved back to Mr Aidiniantz, in 2014, when, as Mr Aidinantz has himself explained, as set out in paragraph 65 of this judgment, it suited his then purposes, in respect of his projected purchase of a UK property with his wife, shows that, in reality the shares remained at his disposal.

77. Secondly, he points to the fact that, even after the 2014 and 2016 transfers to Ms von Ehrenstein, Rollerteam has consistently funded Mr Aidiniantz in respect of his litigation and, seemingly, whenever he has been in need of funds. Specifically, the £1.2M that had to be found for security under the 4 June 2015 order, following the Englehart judgment, emanated from Rollerteam, as did a further £292,845, in respect of other liabilities arising from that litigation. Correspondingly, Rollerteam’s accounts for the year to February 2017, show a director’s loan in the sum of £517,033 and, in the year to February 2018, adirector’s loan of £553,549, seemingly written off in the succeeding year. Reference is also made to an arrangement made by Mr Aidiniantz with HMRC, recorded in a letter of 23 January 2019, whereby Mr Aidiniantz agreed to settle his tax liabilities for a payment of £502, 587. In the absence of any other known sources of capital, the suggestion is made that those monies must also have emanated from Rollerteam.

78. Mr James’ overall submission is that, given that it is Mr Aidiniantz’s own proud assertion that it was he who, via Rollerteam, developed the Sherlock Holmes museum into a hugely successful business, it is highly unlikely that he should have given it all away, even to his wife, and left himself to live entirely on her benevolence. It is much more likely that, in reality and despite the share transfers, he continues to control Rollerteam as the beneficial owner of its shares.

79. In response to all of the foregoing and in explanation of the matters advanced by Mr James, Mr Aidiniantz’s case, as set out in his evidence, is that the original transfer of the Rollerteam shares was made, in effect, upon the occasion of his marriage, in February 2014 and was entirely unrelated to the then pending litigation. The purpose of the gift was, as he put it, ‘for posterity’, to allow the Sherlock Holmes Museum to continue after his death and, at age 58, to allow him to retire, knowing, as I understand his evidence, that the museum would be in the safe hands of his wife and his step-daughter, Laura, and in the expectation, as he explained to his accountant, Mr Berrinson, in November 2016, that his wife would, as she had allegedly promised, place the shares in trust for their son.

80. In regard to the transfer and re-transfer of half of those shares, Mr Aidiniantz explains that, in December 2014, he and his wife were contemplating securing a mortgage to finance the joint purchase of a London property, in place, I think, of Mr Aidiniantz’s then home in Albion Mews, and that they were advised, at that time, that it would be advantageous for Rollerteam to be jointly owned, so that dividends could be declared in favour of both of them, in order that Mr Aidinantz could establish a sizeable income for mortgage purposes. The December 2014 share transfer was, accordingly, effected for that purpose.

81. In the event, the property search was not pursued until 2016 and, in the result, the property eventually purchased, in September 2016 at 89 Hillway, in Highgate, for £2.4M, and now, as I understand it, occupied by Laura, was not vested in joint names but was and is vested solely in Ms von Ehrenstein. The reason for this, as explained by Mr Aidiniantz, is that problems arose, in respect of the obtaining of mortgage finance for the purchase, by reason of the fact, touched upon in the 2023 judgment, at paragraph 13, that Mr Aidiniantz has a conviction, albeit now spent, for mortgage fraud. Once it became clear that Mr Aidiniantz was not to be involved in the purchase, there remained no need for him to retain any of the Rollerteam shares and, accordingly, they were returned to Ms von Ehrenstein, in accordance with his original intention.

82. Mr Aidiniantz’s contention is, in effect, that his evidence and his explanation of the circumstances surrounding the share transfers afford a complete answer to the current claim, whether as to the section 423 claim, or as to the beneficial interest claim. He supports his evidence by reference, in particular to his letter to Mr Berrinson, his accountant, in November 2016. In that letter, as already stated, he referred to the promise that his wife had made that the Rollerteam shares would be put in trust for his young son. He, also, identified his wife as the sole owner of Rollerteam, while explaining that he kept a hand in the business and had not retired.

83. In regard to the contention that he had deliberately made himself ‘judgment proof’ so as to avoid his costs liabilities, Mr Aidinantz drew my attention to payments that he had made (£454.693, in May 2017, and £541,077, in August 2017), after his move to Germany; his submission being that those payments, after the share transfers and after his move to Germany were demonstrative of the fact that neither the share transfers nor the move were effected to avoid his costs, or other liabilities.

84. In regard to the contention that he retains the beneficial interest in the Rollerteam shares and that that is evidenced by his ability to secure funds, as required from Rollerteam, Mr Aidiniantz acknowledges that he did borrow from Rollerteam for his legal expenses, thereby, apparently, giving rise to the tax liability referred to in paragraph 77 of this judgment, but denies that those borrowings evidence any continued beneficial interest in Rollerteam, or its shares. He relies, additionally, upon the presumption of advancement and asserts that the matters relied upon by Ms Riley are insufficient to rebut that presumption.

85. While I do not regard Ms Riley’s claims as being of the strongest, I do not regard them as unrealistic, or fanciful, such as to entitle Mr Aidiniantz to summary judgment. Although, at trial, the burden will be upon Ms Riley to make out her case, at this stage the burden is upon Mr Aidiniantz to persuade the court that those claims have no realistic, or serious, prospect of success. Mr Aidiniantz has not met that burden.

86. Although the question for determination under section 423 of the Act is the purpose of the two share transfers to Ms von Ahrenstein, at the dates that they occurred, February 2014 and April 2016, in determining that purpose the court is entitled to have regard to the pattern of conduct, of which the transfers formed a part.

87. In this case, Mr Aidinantz has acknowledged his capacity to pay his outstanding liabilities and yet has failed to make payment. Alongside that fact and although, as at 2013, he had substantial assets in the jurisdiction, in the shape of the Rollerteam shares and his beneficial ownership of Albion Mews, his position is now that he has no interest in the shares and no discernible property in the jurisdiction, against which enforcement could be levied This eventual state of affairs commenced with the original transfer of the Rollerteam shares at the very point, or only marginally thereafter, that Mr Aidiniantz was faced with substantial litigation and a substantial claim, for £1.7M, launched against him by Ms Riley and her sister, Jennifer Decoteauu. In that context, it is, as it seems to me, a fair and realistic inference, to be derived from all of Mr Aidiniantz’s conduct, that his purpose, or a significant part of his purpose, in effecting the original transfer and in his subsequent ordering of his affairs, including the retransfer of half of those shares in April 2016, after he had elected not to join with his wife in purchasing a new United Kingdom property and while an appeal was pending, which if lost, would open the doors for enforcement, was to protect his assets from enforcement, if, as transpired to be the case, he was the loser in the litigation and subject to the consequent liabilities accruing from the litigation.

88. It is, also and alternatively, in my view, a realistic inference, given the use that Mr Aidiniantz has been able to make of Rollerteam to finance his litigation, to secure the use of its shares, in 2014, when that seemed to him to be beneficial and to retransfer those shares, in 2016, when that suited his purpose, that despite the transfers to Ms von Ahrenstein, Mr Aidiniantz has, in reality, retained beneficial control of the Rollerteam shares. There is, I think, force in Mr James’ point that it is unlikely that Mr Aidiniantz, having built up Rollerteam’s business should, in truth, divest himself of any interest, or share, in that business, such as, now, to be entirely reliant, in leading his life, upon the goodwill of his wife. There is enough, in this material to, at least potentially, rebut the presumption of advancement.

89. Mr Aidinantz says, of course, that he has divested himself of any interest in Rollerteam, or its business. He says that he has beneficially transferred the shares. He says, also, that those transfers had nothing to do with the litigation leading to the Englehart judgment, or its sequelae, and that it was no part of his thinking that, in consequence, of the share transfers, the shares would be unavailable as a medium of enforcement.

90. Those matters, however, cannot, given the context that I have just set out and the available alternative inferences, be determined other than at a trial and after the full investigation of the facts and circumstances provided by a trial. Mr Aidiniantz’s account cannot, I am afraid, be simply accepted at face value,

91. In so saying, I am not seeking in any way to second guess the potential result of the necessary investigation of Mr Aidiniantz’s intentions in respect of the transfers and the beneficial ownership of the Rollerteam shares, which will take place at trial.

92. There are points to be made in his favour. While the original share transfers correlated closely with the commencement of Ms Riley and Jennifer Docateau’s claims, it also correlated closely with Mr Aidinantz’s marriage, in early February 2014, which he says, was the catalyst for the transfers. The point can, equally, be well made that the re-transfer of fifty of the shares to Mr Aidinantz, at a time when those claims were still untried, and the fact that they remained in Mr Aidiniantz’s hands at the date when the Englehart judgment was handed down and when, had it not been for Mr Aidiniantz’s appeal, enforcement could have commenced, tends against the contention that, at least in respect of those shares at that time, Mr Aidiniantz’s intention was to put them out of the reach of creditors. Likewise, I do not disregard Ms von Ahrenstein’s evidence that, at least from her perspective, the transfer to her of the shares was intended to provide for the future of the museum and was unrelated to the then pending litigation.

93. On the other side of the question, I find myself in some agreement with Mr James, in expressing a degree of scepticism as to Mr Aidininatz’s motives in respect of the transfers.

94. It seems to me intrinsically unlikely that Mr Aidiniantz intended to retire at the young age of 58. Even if that was his intention, it seems equally, or more, unlikely that the process of retirement should involve him in giving away his most significant asset; his Rollerteam shares. It becomes more unlikely still, when one bears in mind that Mr Aidiniantz remained a director. Had Mr Aidiniantz intended to retire and leave the running of the museum to his wife and step-daughter one might have expected him to resign his directorship, allowing his wife to become, as she ultimately has, the director of Rollerteam, but retaining the shares in his own hands. There was, as Mr Aidiniantz has explained in his evidence, more than enough money emanating from the business to produce very large salaries for his wife and, presumably, his step-daughter, so that there was no obvious need to effect a share transfer to his wife in order to persuade her to stay in the business.

95. I have a corresponding difficulty with the contention that the motive underlying the transfers was to preserve the museum ‘for posterity’ and as a means of securing that the business was carried on after his death. There seems to me no obvious good reason at all to transfer the shares to Ms von Ahrenstein to achieve this purpose. If Mr Aidiniantz had wanted, in due course, to put the shares in Rollerteam in trust for his infant son, then he could readily have done so himself, without any need to transfer the shares. Equally and more straightforwardly, he could have made a will leaving his shares to his son.

96. In the result, rather than satisfying me that that there is nothing in Ms Riley’s claims, I am left with the feeling that Mr Aidiniantz has presented me with excuses for the transfers, which do not wholly persuade, or hang together, and, consequentially, that his true motivation for the transfers was other than what he has told me and, hence, in the context of the current claims, that his real motivation was, or, certainly, may have been, to remove the Rollerteam shares from the risk that they be the subject of enforcement.

97. I add, finally, in this consideration of the currently available material, that I have not overlooked the point advanced by Mr Aidiniantz and set out in paragraph 83 of this judgment, that the payments that he made, after his move to Germany, explode the theory that he had sought to make himself judgment proof.

98. I am not persuaded that those payments carry the evidential force for which Mr Aidiniantz contends.

99. The position as to those payments is not wholly clear.

100. Mr Aidiniantz, in his second witness statement, dated 18 September 2024 states that the second of those the payments was made from the sale of Albion Mews. That being the case, then under the terms of the 4 June 2015 order, the proceeds of that sale would, pursuant to paragraph 10 of that order have been paid not to Mr Aidiniantz but to his solicitors and, after payment of costs of sale, utilised to make up the £2.2M security that Mr Aidiniantz was to provide. On that scenario, the monies in question were never in Mr Aidiniantz’s hands to use, and the fact of that payment says nothing about his overall intentions, or any wish to evade execution.

101. As to the first payment, in May 2017, which preceded the sale of Albion Mews, Mr Aidiniantz describes that payment as being made to ‘top up’ the sum that he was required to pay as security and the point can be made that that payment, made prior to, rather than following, completion, was made in excess of Mr Aidininatz’s obligations under the 2015 order, which required any ‘top up’ to be made within 14 days following completion.

102. A somewhat different picture emerges, however, from a witness statement, filed by Ms Riley and dated 24 April 2019, in support of an application to withdraw some of the funds paid into court. In that witness statement Ms Riley explained that in May 2017 she and her sister had applied, Albion Mews remaining unsold and the balance of the security required under the 4 June 2015 order remaining unpaid, for an order that she and her sister should have conduct of the sale. It was that application, she said, that gave rise to the payment of £454,693,91, with the subsequent payment of £541,077.04 (to make up the sum required as security) eventually emanating from the sale of Albion Mews.

103. Whichever scenario is correct, it is clear that the payments in question were either made from monies emanating from Albion Mews and held, pursuant to the 4 June 2015 order, by Mr Aidiniantz’s solicitors, for the purposes of providing security, or paid under the pressure of litigation. In neither instance, therefore, were they, in any real sense, voluntary payments. They were payments made, in one way or another, under compulsion and, as such, are not and cannot be definitive as to Mr Aidiniantz’s overall motives and intentions.

104. The result, or consequence, of all of the foregoing is that, whether by way of strike out, or summary judgment, Ms Riley’s claims cannot be disposed of at this stage of the litigation and that Mr Aidiniantz’s application to that effect must be dismissed. It necessarily follows, without any consideration of the technical requirements underlying a civil restraint order, that this case is not appropriate to such an order. What will be necessary, and in respect of which directions will be given, is for Mr Aidiniantz to file and serve his defence, such that this claim can proceed to trial.

105. There remains Mr Aidiniantz’s application for security as to his costs, placed upon the footing that he might at some stage, or stages, instruct solicitors and counsel and that security, in an entirely unspecified amount, should be provided.

106. Under CPR 25.27, the court has jurisdiction to order security if satisfied that it is just in all the circumstances to make such an order and if either statute permits the court to require security or the applicant for an order for security can establish one of the ‘gateway’ conditions for a grant of security is applicable. Those ‘gateway’ conditions are now set out at CPR 25.27 (b)(i) to (vi). Even if the jurisdictional requirements are met the court has a large discretion as to whether and in what sum to order security.

107. Mr Aidinantz relies upon two ‘gateways; namely that Ms Riley gave an incorrect address in her claim form (CPR 25.27(b)(iv)) and that she has taken steps in relation to her assets that would make it difficult to enforce a costs order against them (CPR 25.27(b)(vi).

108. As to the first ‘gateway’ it is said that the claim form address, 28 Huntsworth Mews NW1, was an incorrect address and that Ms Riley did not live there at the date in July 2024 that this claim was issued. Reliance is placed upon an email from Court Enforcement Services, in August 2023, informing Rollerteam that the ‘Debtor No Longer Resides’. Ms Riley says that this is completely untrue and that in July 2024 she was the tenant at Huntsworth Mews. She points out that in earlier correspondence, in June 2023, which she had evidently received, the enforcement body was writing to her at the property, in a way inconsistent with her no longer living there.

109. I do not regard the enforcement body’s email as nearly sufficient to satisfy me that Ms Riley had given an incorrect address in her July 2024 claim form, or, therefore, that her evidence to me, in this regard, was untrue. Experience, regrettably, shows that enforcement bodies are not always a reliable source of information. Nor has anyone given me any good reason why Ms Riley should have chosen to give an incorrect address. I do not regard this ‘gateway’ as available.

110. In regard to the second ‘gateway’, it is said that Ms Riley, by putting a company, Global Diversity Awards Ltd into creditors voluntary liquidation in 2018, took steps in relation to her assets that would make it difficult to enforce a costs order against her.

111. I am not at all persuaded that this ‘gateway’ is made out. There was no serious attempt to analyse the circumstances of this liquidation at the hearing of this application, Nor was there any identification of the assets, in respect of which and by dint of this liquidation, Ms Riley had allegedly taken steps, such as to make it difficult to enforce a costs order against her. There is some suggestion in the liquidator’s report that assets of the company may have been dissipated, but those assets were not Ms Riley’s. Her only assets, pertaining to the company, unless she was herself a creditor, would have been her shares. Given that this was a creditors liquidation, with, apparently, a substantial deficiency, it is hard to see that the shares had any value, or that the liquidation adversely affected that value.

112. I add, for completeness sake, that, even if I had considered either ‘gateway’ to have been established, I would not have directed that security be ordered.

113. There are a number of reasons for this.

114. Firstly, in a case where the claims before the court are claims to recover assets, or declare the ownership of assets, such as to enable the recovery of substantial unpaid costs, it seems to me to be entirely unjust for the unpaid judgment creditor, in respect of those costs, to be ordered to give security. It follows, that my jurisdiction to order security is not made out

115. Secondly and as a matter of my discretion, Mr Aidiniantz’s unpaid costs liability, itself, provides him with a measure of security. Should he win this case and be awarded his costs, he will be able to set off those costs in reduction of his costs liability to Ms Riley. There is no need to order security

116. Thirdly and also going to discretion, I am not persuaded that I should order some speculative and unquantified amount of security against the possibility that Mr Aidiniantz will, in the future, instruct solicitors and counsel. It is not appropriate that the court should lock up any part of Ms Riley’s resources, by way of an order for security, when the court has no basis upon which to determine the amount to be ordered and no guarantee that the costs, in respect of which the security would be ordered, will ever be incurred.

117. It follows from the foregoing that this aspect of the Defendants’ application is, also, to be dismissed.