On 20 January 2023, the Court of Appeal handed down Judgment in Phoenix Group Foundation v Harbour Fund II LP & Others [2023] EWCA Civ 36, a decision dealing with competing proprietary claims to valuable assets which had been the subject of a substantial fraud. Daniel Saoul KC of 4 New Square Chambers, leading Richard Hoyle of Essex Court Chambers, acted for the successful Respondents to the appeal.
The background to the dispute was a series of complex transactions, including the transfers of shares in offshore companies, which had been procured by blackmail and bribery, and further attempts to shelter those shares through the use of nominees, all of which was considered in detail by Foxton J following a lengthy trial in 2021 (see [2021] EWHC 1272 (Comm), in which the Judge described the dispute as being of “labyrinthine complexity”).
The appeal centred on whether Phoenix Group Foundation (a Panamanian entity), the Appellant, was entitled to future distributions from those shares once the winding up of the companies in question was complete. Those distributions would otherwise be payable to those entitled to the shares. Phoenix argued that a particular transaction – known as the Liquidation Inter-Creditor Settlement Agreement or LICSA – effected an equitable assignment to it of the right to the future distributions.
The Court of Appeal rejected that argument. The Court considered the requirements of equitable assignments of future property, namely (1) a clear outward expression of an immediate and irrevocable intention to divest oneself of future property and vest it in the assignee, (2) a sufficiently clear description of the future property being assigned, within the agreement, and (3) the giving of value for the agreement to assign. Applying those principles to the facts, the Court of Appeal concluded that the LICSA did not give rise to an equitable assignment in favour of Phoenix; the Court also rejected a related argument that such an assignment could be construed as operating by way of security, in support of a Loan Note in Phoenix Group’s favour entered into at the same time.
The Judgment of the Court of Appeal can be found here.
