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OUTER HOUSE, COURT OF SESSION
[2024] CSOH 52
CA94/23
OPINION OF LORD SANDISON
In the cause
MEX GROUP WORLDWIDE LIMITED
Pursuer
against
(FIRST) STEWART OWEN FORD; (SECOND) BRIAN ROBERT CORMACK;
(THIRD) COLM DENIS SMITH; (FOURTH) MICHAEL GOLLITS; (FIFTH) MELVILLE
CONSULTING PARTNERS LIMITED; (SIXTH) MELVILLE CONSULTANCY LIMITED;
(SEVENTH) REGAL CONSULTANCY INTERNATIONAL LIMITED;
(EIGHTH) CSM SECURITIES SARL; (NINTH) VON DER HEYDT & CO AG;
(TENTH) VON DER HEYDT INVEST SA; (ELEVENTH) MEX SECURITIES SARL;
and (TWELFTH) VIACHESLAV (known as `SLAVA') VOLOTOVSKIY
Defenders
Pursuer: Moynihan KC et J Brown; Clyde & Co (Scotland) LLP
First, Second, Fifth, Sixth and Seventh Defenders: McBrearty KC et E Campbell;
BTO Solicitors LLP
17 May 2024
Introduction
[1]
The summons in this commercial action passed the Signet on 19 October 2023 and
on the same day I granted warrant to arrest on the dependence under section 15E of the
Debtors (Scotland) Act 1987 on the ex parte application of the pursuer. In April 2024 the first,
second, fifth, sixth and seventh defenders sought recall of the warrant to arrest in terms of
2
section 15K(5)(a)(i) of that Act. The onus in the recall motion is the same as it was at the
hearing for the initial grant: it is incumbent on the pursuer as creditor to satisfy the court
that the arrestment should not be recalled: see respectively sections 15E(3) and 15K(10)
and, eg, Glasgow City Council v The Board of Managers of Springboig St John's School [2014]
CSOH 76 at [9]. Recall is, in terms of section 15K(8), to be granted if the court is no longer
satisfied as to the matters specified in subsection (9), viz: (i) the existence of a prima facie
case on the merits; (ii) a real and substantial risk that enforcement of any decree would
otherwise be defeated or prejudiced; and (iii) that it is reasonable in all the circumstances
for warrant to arrest to be granted. In considering recall, the court must take into account
the terms of the defences and the submissions made by the defenders: Gillespie v
Background
[2]
The extensive and complex background to this litigation is set out in my opinion
of even date to this in a petition by the pursuer for an order under section 1 of the
Administration of Justice (Scotland) Act 1972 - [2024 CSOH 51]. That opinion explains
why I refused the motion of the respondents for recall of a section 1 order made on
18 October 2023. The same background facts apply to the motion for recall of the warrant
to arrest in the present case, and indeed both motions were argued together over 3 days. I
record separately here only the submissions of the parties which were specifically directed
to the question of recall of the warrant to arrest.
3
Pursuer's submissions
[3]
On behalf of the pursuer, senior counsel added to his general submissions that there
was no challenge to the averments in the summons justifying the necessity for warrant
to arrest. The fact that a defence had been put forward did not necessarily preclude the
grant of diligence. The existence of a positive defence required the court to scrutinise the
pursuer's case with extra care, but the question remained whether a good arguable case
had been made out by the pursuer: F G Hawkes (Western) Ltd v Szipt Ltd (Lord Emslie,
unreported, 21 March 2007), at [25]. It followed that diligence could be granted where each
party had a prima facie case. The case put forward by the pursuer met the standard required
to justify the grant of diligence.
Defenders' submissions
[4]
On behalf of the relevant defenders, senior counsel submitted in particular that the
pursuer had no sufficient prima facie case and that the warrant to arrest should be recalled
for that reason. The prima facie test was a substantial hurdle for the pursuer to surmount:
Gillespie at [13], approving Lord Drummond Young in Barry D Trentham Ltd v Lawfield
Investments Ltd 2002 SC 401, 2002 SLT 1094, at [6] on the meaning of "prima facie", ie a good
arguable case. The pursuer's case did not meet the requisite standard.
Decision
[5]
Although the factual background to the motion for recall of the warrant to arrest
is the same as that set out in the petition process, the background law is very materially
different. For reasons which are well-understood and canvassed clearly in Gillespie, the
pursuer requires to surmount the "substantial hurdle" of setting forth a "good arguable
4
case" and not merely a colourable one. The court requires to consider the pleadings as
a whole and the submissions made by both counsel to determine whether, in all the
circumstances, arrestment is appropriate on the basis of the existence of a prima facie case.
[6]
I set out the parties' contentions on the existence or otherwise of a prima facie case in
my opinion in the petition process. For the reasons set out in that opinion, in particular the
identification of the salient points of the pursuer's case at [49], and taking fully into account
the nature of the defence stated, I conclude that a prima facie case of the requisite standard
has been stated by the pursuer. It is a good arguable case, notwithstanding that it will face
the same challenges and hurdles described in my opinion in the petition procedure. For
the reasons there explained, I do not consider it appropriate at this stage to canvass in any
further detail at this stage the apparent merits and weaknesses of the case of any party.
Conclusion
[7]
I refused the defenders' motion for recall of the warrant to arrest.
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