Self-Help and Abusive Conduct Defeats Application for an Order for Evidence against Non-Parties

Last week, Mr Justice Popplewell, giving reasons for his decision ahead of a written Judgment, relied on earlier judicial criticism, namely that Dr Smith “uses the process of litigation, and abuses it, for the purpose of obtaining leverage and harassing others” [1], and that “the Orb Parties cannot be trusted”.[2]

The Facts

The Orb Parties, financed by Harbour Litigation Funding, and represented by successive barristers and solicitors, brought a series of secret applications over a period of 6 months in proceedings against Mr Ruhan. The Orb Parties and their lawyers described meetings with certain individuals said to be committing crimes, and to whom the Orb Parties belatedly admitted paying an additional sum of £100,000 in cash, after an initial payment of £30,000 in cash that had been disclosed to the Court. The justification was said by the Orb Parties to be yet a further attempt to obtain evidence to discredit Mr Ruhan, their opponent, in a long running Commercial Court action.

The privacy orders have been overturned first on the application of Mr Ruhan and more recently a third party who was the subject of a recent secret application for so-called Norwich Pharmacal relief to obtain evidence from a non-party.

Dismissing the applications, Mr Justice Popplewell said the previous orders should be set aside first because the Orb Parties and their legal representatives failed to give full and frank disclosure which was so serious, when taken together, that the order could not stand and should not be re-granted.  Second, the real purpose for the Orb Parties’ application was not legitimate but was an attempt to discredit Mr Ruhan, and obtain litigation advantage against him, so as to force him to settle the Commercial Court action.

Mr Justice Popplewell relied on seven instances of failure to give full and frank disclosure.  One was the failure of the Orb Parties’ lawyers sufficiently to draw to his attention previous judicial criticism of the extraordinary conduct of Dr Smith and his former wife, Dr Gail Cochrane, in procuring the Trustees of an Isle of Man Settlement (which Mr Ruhan claims belongs to him) to transfer the property and assets it held to the Orb Parties.  In an application to the Court last year, Mr Ruhan claimed, and the Court accepted in refusing to join additional parties, that the value of the assets in the Isle of Man Settlement was between £150m and £200m. That far exceeded the Orb Parties’ largest estimate of their alleged losses so that they had already over recovered by way of “self-help” whether or not they ever had any claim at all against Mr Ruhan.

Mr Ruhan is pursuing a counterclaim against the Orb Parties and his former solicitors, Mr Simon Cooper and Mr Simon McNally, for recovery of the property and assets taken from the Isle of Man Settlement.

There will be a series of hearings in March in which Mr Ruhan alleges that the Orb Parties are in breach of Court Orders made last year and in contempt of Court, and seeking further interim relief against the Orb Parties and Messrs Cooper and McNally.  The date fixed for trial of this action in November 2016 is likely to be rescheduled for 2017.

Harvey Rands
Anne McMahon
Nikola Lowry-Lee