(Queen’s Bench Division, May J, 1 March 2016)
Financial remedies – Freezing order – Risk of dissipation
The judge refused to continue the freezing order over the husband’s assets and refused to make an order under s 25 of the Civil Jurisdiction and Judgments Act.
Case No: IHQ/15/7059
Neutral Citation Number:  EWHC 475 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
THE HON. MRS JUSTICE MAY DBE
- - - - - - - - - - - - - - - - - - - - -
MAYA KANEV LIPINSKI
- and -
(1) SHAHAR AHARON LIPINSKI
(2) MEGACLOSE LIMITED
(3) MEGACLOSE (LEICESTER) LIMITED
(4) BYRON WORKS LTD
(5) EAST MIDLANDS TECHNICAL LIMITED
- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -
MR A HUNTER QC and MS H BROWN (instructed by Mishcon de Reya) appeared on behalf of the Claimant
MS E JONES QC and MR A CHILD (instructed by Russell Speechleys) appeared on behalf of the First Respondent
MR F MOERAN QC (instructed by Freeths) appeared on behalf of the Second and Fourth Respondents
Hearing dates: 25, 26, 29 February 2016
- - - - - - - - - - - - - - - - - - - - -
Mrs Justice May
This is the substantive return date for the court's consideration of freezing and asset preservation orders obtained by the claimant (“Maya”) at a without notice hearing before Mr Justice Haddon-Cave on 21 December 2015.
By her application at this return date, Maya seeks to replace the orders which she obtained late last year with differently-worded relief. She continues to seek that relief in support of divorce proceedings which have been underway in the Israeli family court since 2012.Background
Maya and Shahar Lipinski were married. After 17 years and two children together, and following several false starts in different jurisdictions, they finally got divorced in Israel in August 2012.
Their divorce agreement, endorsed as an order of the Israeli family court at the time (“the Divorce Agreement”), made provision for the division of the couple's assets, by far the most valuable of which took the form of shares in UK property companies whose business is the acquisition, development and management of student accommodation in Nottingham and Leicester (collectively “the companies”).
The divorce was acrimonious. Whilst married the couple lived for part of the time in the UK. Since the separation Maya has stayed with the children in Israel, whilst Shahar has travelled, keeping a base in the UK.
The Israeli family court is seized of the divorce proceedings and has been therefore the only appropriate venue for the couples' claims and grievances arising out of their divorce to be aired and resolved. The Divorce Agreement contained provisions obliging Maya and Shahar to cooperate in the continued management of the UK businesses pending final division of the assets. Clauses of particular relevance to the issues which I have to consider at this hearing are as follows:
“12.1 It is agreed that during the period up to the performance of the balancing in all the property, the parties shall act in cooperation in everything connected to the management of the property in general, and the joint business specifically, while taking joint decisions and with full transparency.
12.2. The husband undertakes to give the wife full access to the business, to the companies and to the accounts, to represent her faithfully with care for her interests and to refrain from taking any action which may harm in any manner whatsoever her share in the joint property as defined in this agreement above.”
“15.2.The parties agree that in every matter relating to this agreement the sole and exclusive jurisdiction shall be that of the court for family matters in Israel.”
“15.4. The parties agree that they will behave in good faith and reciprocal respect, the one towards the other."
I refer to clause 15.4 only to observe that in this respect, as in others, the Divorce Agreement appears to have been honoured more in the breach than in the observance. The breakdown of the trust and respect which this clause sought to maintain has no doubt been at the root of the proliferation of applications in Israel and here.
The Divorce Agreement was endorsed by order of the court, dated 20 August, at paragraph 4 of which is this provision: “This judgment in no way prejudices the issue of jurisdiction in respect of the property located in England.”
The cooperation anticipated by the couple's divorce agreement did not happen. Accusation and counter accusation was subsequently levelled in the course of many applications made by Maya during the period 2013 to 2015 in the Israeli family court. Those are fully set out at appendix 5 to Maya's affidavit. Happily, I do not have to resolve any question as to why the couple could not comply with the cooperation provisions of their Divorce Agreement. Perhaps that aspect of it was always doomed to fail. In any event, in November 2014, having had considerable experience at many hearings of trying to resolve the couple’s differences by ordering disclosure of information and encouraging cooperation, the Israeli court finally called time and made an order for an independent accountant, KPMG, to be instructed to value the UK businesses as at the date of the divorce, August 2012, with a view to giving judgment for a balancing payment to be made by Shahar to Maya. As Maya put it in her first affidavit at paragraph 119:
“In appointing KPMG, of its own volition, to value the assets belonging to myself and the first respondent, the court has been moving towards a different solution for me which will enable me to obtain a figure for the total value of the assets as at 20 August 2012. This will then leave the Israeli court granting me a monetary judgment against the first respondent for the money which he will owe me to balance the equities once our assets have been divided equally.”
KPMG were appointed in January 2015. Their report is due later this month.Orders made last December
Following a without notice hearing in front of Mr Justice Haddon-Cave on 21 December 2015, the court granted Maya a worldwide freezing injunction and an asset preservation order. Under the terms of the freezing order Shahar was restrained from disposing of any of his assets up to the value of £12 million, the order being wide enough to catch all assets in the companies' hands, given that Shahar is the sole director and shareholder of the companies. There were, of course, the usual course of business exclusions and living expenses provisions.
The asset preservation order was obtained against Shahar and the companies together. It required them to permit a computer expert to take images of all computers and electronic data storage devices at the company or held remotely, giving access to the company data. Those orders were continued with some amendments by the order of Mr Justice Goss on 12 January this year pending the inter partes return date.
As this is the substantive return date, the orders originally made at the without notice hearing cease unless or until Maya successfully applies for them to continue. In the event, Mr Hunter QC and Ms Brown for Maya do not seek to continue the orders in their existing form.
Following the service of evidence by Shahar and the companies the relief sought has shifted, notice of this shift first being given to the respondents on Monday, 22 February, three days before this hearing. Mr Hunter now seeks a different and, in his words, "specifically tailored" relief to protect Maya's interests pending the payment to her of whatever balancing sum may be ordered by the Israeli court in due course. To this end Mr Hunter asks for the following relief: firstly an order restraining the companies from entering into any transaction greater than £50,000 without first seeking Maya's permission (para. 2(a) of the proposed draft order).
Next, an order restraining Shahar from withdrawing any monies against the company loan account in excess of £25,000 per month (para. 2(b)).
The order requiring payment of maintenance to Maya is now no longer pursued.
Third, an order restraining Shahar from disposing or dealing with his shares in the companies (para.3).
At paragraphs 4 to 7 of the proposed draft there are orders requiring the companies to permit Maya to view (with exceptions for privileged documents) the material imaged pursuant to the order of Haddon-Cave J in December.
Paragraph 8 of the draft seeks access to the data room of information made available to KPMG; as to this, the companies have agreed to provide that access, provided KPMG given their consent.
There are further orders sought, at paragraphs 9(a) and 9(b) of the draft order, requiring the companies to provide specific financial information about their businesses, lists of which information are attached in two schedules to the draft order, being information from 20 August 2012 to the present and continuing.
Lastly, by a separate application Mr Hunter seeks permission to amend the claim form to add a freestanding claim in contract, based upon clause 12 of the Divorce Agreement.
Shahar and the companies challenge Maya's entitlement to any continued freezing or asset preservation relief. Their first and principal objections concern what they say were deliberate and material nondisclosures made by Maya at the time of obtaining the orders in December. Ms Jones QC for Shahar and Mr Moeran QC for the companies, submit that these non-disclosures were so egregious as to preclude any further relief being granted, irrespective of any underlying merit. In any event, they say, there is no merit on the evidence now before the court.Alleged non-disclosure
I was reminded by the parties of the relevant principles to be drawn from the cases in relation to non-disclosure, many of which are gathered conveniently in Arena Corporation Limited (in Provisional Liquidation) v. Peter Shroeder
 EWHC 1089 at paras 162 and following. These principles are as follows:
(1) The courts should not encourage litigants to search ingeniously for facts which might be regarded as relevant.
(2) However, freezing and search orders are “nuclear weapons” within the court's arsenal of relief, necessitating the fullest and frankest disclosure.
(3) Accordingly where there has been non-disclosure of a material fact, the court will generally deprive the defaulting party of the advantage they have gained by means of the breach.
(4) Non-disclosure need not be accompanied by an intention to mislead for discharge of the order to be justified.
(5) The principle should not be carried to extreme lengths, especially in complex commercial litigation or in cases of extreme urgency.
(6) If there has been non-disclosure the court should assess the degree and extent of what has been non disclosed, and of culpability, each case depending on its own facts.
Ms Jones complained of six non-disclosures which were, she says, material to the judge's decision to grant the relief in December. I can take the first two together. It is said that a false picture was given of the context against which three Leicester properties were sold by the companies in 2014. Ms Jones submitted that Maya's failure to put before the court what she knew of the effect of the banking crash and the resulting need to dispose of assets in order to refinance the companies' debt meant that an unfavourable and unfair picture was presented to the court about these sales. The absence of context meant that the sales in April 2014 could be, and were, presented as suspicious rather than as a necessary response to the prevailing financial conditions.
Mr Hunter, in response, drew my attention to Maya's affidavit in December, which does make reference to the banking crash. He took me through the account of the reasons for the sales presented by Shahar to the Israeli court in response to complaints made by Maya in 2014. Shahar's contemporaneous accounts, pointed out Mr Hunter, were to the effect that he procured the sales in order to meet his obligations to Maya under the divorce agreement. Since Maya had by then been “locked out” of information by Shahar and the companies, she knew no more than what Shahar had told to the court as to the reasons for sale.
Ms Brown further argued that Shahar's motivations for sale were beside the point anyway as the matter to which the judge at the hearing was being directed was not what had motivated the sales but rather that Shahar had not accounted to Maya for the sale proceeds as the terms of the divorce agreement required him to.
Having reviewed what Shahar said to the Israeli court about the sales at the time, and the way that the matter was presented to and considered by the judge, I am satisfied that there was no non-disclosure of a material fact. The reference to her “suspicions” at paragraph 77 of Maya's affidavit is to be read in the context of paragraph 78, complaining of a breach of clause 12 of the divorce agreement, and not more.
The next alleged nondisclosure concerns what Ms Jones says was a misleading valuation of the companies. It was submitted to the court that the value of Maya’s 50 per cent share in the companies was 12 million, this sum being based upon a figure of 24 million noted in a refinancing document produced for the companies in December 2013. The same document contains a later reference to a debt of 10 million owed to Longbow which the companies now say – although this is not altogether clear on the face of the refinancing document itself, ought to have been deducted from the £24 million figure.
Ms Jones points to the fact that the £24 million figure was inconsistent with the companies' audited accounts, also exhibited by Maya to her affidavit, showing values of £16.8 million as at June 2012 and £10.64 million as at June 2014. Ms Jones says also that Maya's accountant had been supplied during 2013 with valuations carried out by Jones Lang LaSalle in October 2012, demonstrating that values of properties were very much lower than balance sheet values, which were themselves lower than the £24 million figure relied on at the hearing before Haddon-Cave J.
Ms Jones submits that Maya failed to tell the court in December about, or even to exhibit, the letter from Shahar dated 23 September 2014 in which he set out in detail what the values of the assets were against the values of the various liabilities, offering to have them all independently verified.
Moreover, says Ms Jones, when Mr Justice Haddon-Cave was taken to the financial statements by Maya's counsel in December it was not to correct the £24 million figure but to suggest that Shahar had dissipated funds in recent years so as dramatically to deplete the asset values.
Mr Hunter, in his response, took me to the transcript of the presentation to the judge in December, pointing out that the figure of £24 million was presented as the maximum possible valuation figure. Ms Brown had indicated to Mr Justice Haddon-Cave that the figure had been taken from a document that was not easy to understand and had specifically taken him to the appendix to Maya's affidavit setting out the various valuations given in management and company accounts over the years from 2010 to 2014. There was an undoubted drop in value of £3 million over the years, Mr Hunter submitted, and this was the figure that was discussed with the judge at the hearing, not the larger one of £13.6 million.
Ms Brown also took me through the way in which she had presented the case to Mr Justice Haddon-Cave in December, pointing out to him the lack of clarity in the £24 million figure and taking him through the other contemporaneous company accounts exhibited by Maya. Ms Brown made the point that as Maya had effectively been frozen out of information about the companies, she had been dependent upon publicly available information to supplement that which her accountant had been able to obtain in 2013/2014.
Ms Brown submitted that she had taken the judge very fully through what had been recorded in Israeli proceedings about information going to Maya and her accountant in 2013/2014. The judge was aware from Appendix 5 to her affidavit that Maya had had information about the valuations given to her accountant in early 2014. The judge confirmed that he had read Appendix 5 in full. As to the letter of 23 September, that was not comparing like with like and so was irrelevant, but in any event the letter had been part of a series of offers made by Shahar, one at least of which had been marked "without prejudice" and it would therefore have been inappropriate to have taken the judge to any of them, including the one made in the letter of 23 September 2014.
Having been back to the detail of the valuations set out in successive company accounts, and having considered the way in which matters were presented to the judge orally in December, I have concluded that the judge was fully and properly apprised of all relevant facts which Maya and her team then knew. In retrospect, paragraph 77 of the skeleton argument before the court, linking Shahar's withdrawals to an apparent drop in book value of £13.6 million, put the matter too high, but I accept that this stark position was moderated by Ms Brown in her oral submissions to him and I remind myself that it is non-disclosure of a material fact that grounds the sanction, not an overenthusiastic submission made on part of the facts, provided, of course, that the full facts are set before the judge for his or her consideration.
I move to the allegation that there was non-disclosure in connection with Shahar’s and the companies’ provision of information to KPMG. Ms Jones did not seek to get away from the very clear finding of the Israeli court in November 2015 that Shahar had delayed in providing information to KPMG. Nevertheless, she said, Maya had gone on to suggest that there was a specific failure on the part of the companies to provide information concerning the RBS settlement, whereas the true position at the time of the hearing was that Maya did not know whether there had been any such failure. In fact there was no failure, as the information had been provided to KPMG without any undue delay the week prior to the hearing.
Mr Hunter and Ms Brown drew my attention to what the judge was in fact told at the hearing - I refer here to pages 16 and 17 of the transcript. Mr Justice Haddon-Cave was taken to the full run of emails between Maya and KPMG; he was then informed that Maya had tried to check the position that morning but had not managed to find out whether anything had been forthcoming from the companies to KPMG the previous week.
It is the case that in written submissions to the judge in December the case was put on the basis of a failure to provide information. But Ms Brown was careful in her oral submissions to set out the true position. In his judgment, the learned judge continued to refer to a failure, but that was hardly surprising in view of the very trenchant comments about Shahar's prevarication in connection with supplying information to KPMG made by the Israeli court the previous month.
I have concluded that there was no non-disclosure of a material fact made in respect of the provision of information concerning the RBS settlement. In reaching that conclusion I reject Mr Hunter and Ms Brown's criticisms made of Shahar and the companies to the effect that they should have told KPMG of information earlier and that taking three and a half weeks to respond to KPMG's request made on 22 November 2015 constituted a persistent putting off of the kind suggested by Mr Hunter in submissions.
The next matter relied upon was an alleged failure to inform Mr Justice Haddon-Cave that payments made from the companies about which Maya complained were in fact, as to part at least, going to her. It was not enough, submitted Ms Jones, that Maya may through her counsel have told the judge that it was possible that some monies went to Maya's maintenance account in Israel. She had the ability to check and should have done so. Had Maya looked back over her account statements, she could have told the judge that payments amounting to approximately £1 million had been made to her accounts from the companies' director’s loan account in the years 2012 to 2015.
By the time of her evidence in response, Maya clearly had gone back to her accounts. She set out in her second statement what sums she had received and what they had been used for. There is no doubt that, as Mr Hunter and Ms Brown submitted, the sums paid to Maya were less than those paid to Shahar, and they also included large sums paid into her account for the benefit of the children.
That is not the point, argued Mr Moeran, the court was not told of those payments from the company to her, whilst at the same time the payments to Shahar were being held up as evidence of dissipation. Had the court had the full picture, he submitted, the payments to Shahar must have assumed a totally different character.
Having gone back to the way in which Ms Brown presented the point to the judge at the hearing, I have concluded that there was no non-disclosure of a material fact. At pages 23 to 24 of the transcript Ms Brown clearly informed the judge that the position was not clear and that the monies may have been going to Maya’s maintenance account, effectively inviting him to discount the evidence.
The final matter relied on by Ms Jones concerned the answer Mr Justice Haddon-Cave was given to his very natural enquiry as to what had changed since the last Mareva application made to, and refused by, the Israeli court in 2014. Ms Jones argued that the judge's attention had not been drawn to the fact that Maya had complained to the Israeli court in 2015 of the same matters which she relied on at the hearing in December, but had been refused any relief. Mr Justice Haddon-Cave had been told of a failure to cooperate with KPMG, and a discovery of further sales without reference to Maya, both of which had already been drawn to the Israeli’s court’s attention (there were two further matters which are no longer of any importance).
Mr Hunter and Ms Brown pointed to Appendix 5 containing full summaries of all the Israeli proceedings and making reference to the Israeli court being told by Maya that property purchases were being made. Counsel pointed out to me again that Mr Justice Haddon-Cave had confirmed at the time that he had read this appendix so he can have been in no doubt of the matters of which the Israeli court had been made aware by Maya, and what the court’s response to them had been. As to KPMG, Mr Hunter pointed out, there had been delay, as the Israeli court had found. These were new matters arising since the refusal of Mareva relief in 2014; that had been the thrust of the judge's question and not anything wider than that.
Again, having been back through the transcript of proceedings and having reviewed what was set out for the judge, and which he confirmed he had read, in Appendix 5, I am quite satisfied that there was no non-disclosure of the content of complaints which Maya had already made to the Israeli court.
Conclusion on non-disclosure
In conclusion, therefore, having carefully gone through the transcript of the hearing and matching it to the documentation referred to, I have concluded that there was no non-disclosure of material facts made to the judge in December.
The reframed relief now sought
I move now to a consideration of whether to grant the reframed relief which Mr Hunter now seeks. The relief for which Mr Hunter has applied at this return date is sought under section 25 of the Civil Jurisdiction and Judgments Act in support of proceedings in the Israeli family court. All parties are agreed that, under the principles set out in Credit Suisse v. Cuoghi
 Q.B. 818, this court must be satisfied, before it could grant relief, of two things: (1) If the main proceedings were taking place here and not in Israel, would the English court grant relief? (2) Is it nonetheless inexpedient to grant the relief?
Mr Hunter submits that if the family proceedings were taking place here in the UK, then this court would grant an order to protect Maya's interests so as to prevent Shahar from dissipating assets so as to render Maya's eventual judgment difficult or impossible to enforce.
The usual principles applying to the grant of freezing orders are engaged. As to the existence of a good arguable case, there is no doubt but that Maya will obtain, in due course once KPMG have reported, a money judgment for a substantial sum against Shahar by way of balancing payment to bring the divorce proceedings to a close. The Israeli court clearly decided in November 2014 that a clean break in this way was the fairest and most desirable course to take, and appointed KPMG to determine the amount to be paid by Shahar in order to achieve it.Risk of dissipation
I must next consider whether there is a real risk of dissipation such as to require the financial restraints on the companies and on Shahar which Maya seeks? Mr Hunter referred in this respect to what he described as Shahar’s "motive, opportunity and propensity".
Regarding motive, Mr Hunter pointed to the fact that Shahar and Maya are engaged in a hostile and vituperative personal battle, where feelings have run, and are running, very high. All attempts over the three and a half years since August 2012 at cooperative engagement have failed. They remain bitterly opposed to each other. This bitterness, he suggests, gives Shahar a motive to act against Maya's interests.
Ms Jones, for Shahar, whilst fully acknowledging the bitterness, asks, rhetorically, whether Mr Lipinski hates his ex sufficiently to destroy his business and make himself bankrupt, which is what would happen, given how highly geared the businesses are and given also that all the lending is cross collateralised and secured by Shahar's personal guarantee.
Next, opportunity. Mr Hunter relied on the fact that Shahar is the sole director and shareholder of the companies. The day-to-day manager of the companies, Mr Thrower, acts under Shahar’s direction. Shahar's exclusive control gives him, suggests Mr Hunter, the unfettered opportunity to take steps to frustrate enforcement of any balancing payment in advance of the Israeli court's imminent order. Ms Jones answers this in the same way, pointing out also that over the past three and a half years Shahar has had control but has not in fact used it to dissipate or remove assets. On the contrary, the businesses have purchased more UK properties and have grown in value. Mr Moeran adds to this that Shahar's control is not unfettered in that there is a network of lenders supervising; closer to home there is also Mr Thrower as well as 15 employees, who would necessarily have to lend their efforts to any dissipation, thereby putting their own jobs and reputations at risk.
As to propensity, Mr Hunter does not any longer rely on any of the matters dealt with by Maya in her affidavit in December. He could not do so in any case, because each point has been addressed satisfactorily in the evidence of Shahar and Mr Thrower.
Mr Hunter drew my attention to the case of Congentra AG v Sixteen Thirteen Marine SA
 EWHC 1615 and the characterisation by Mr Justice Flaux at para. 49 of two types of dissipation: first, straightforward disposal or dissipation of assets; second assets being dealt with in such a way as to make enforcement of any award or judgment more difficult “unless those dealings can be justified for normal and proper business purposes” (referring to Stronghold Insurance Co Ltd v Overseas Union Insurance Ltd
 L.R.L.R. 13).
Mr Hunter relies on the following as indicating a real risk of dissipation on the part of Shahar: First, the April 2014 sale of properties in Leicester held by the UK companies and the payment of a dividend from that sale to Shahar's directors' loan account. Mr Hunter contrasts this dividend payment with Shahar's statement, made in his defence to Maya's enforcement claim in the Israeli proceedings, that he had not and did not withdraw dividends from the companies under his management. That, says Mr Hunter, was simply an untrue statement made by Shahar.
I disagree. In circumstances where the transfers were to the directors' loan account to settle debt, what Shahar said to the Israeli court was technically correct. In any event Maya can have been in no doubt that this is what Shahar was doing as it was how the couple were accustomed used to manage their finances, by drawings from the directors' loan account.
Mr Hunter sought at the last minute, in his reply, to draw my attention to specific payments made by the company to Shahar in August 2014, suggesting that there was a spike of payments amounting to some £50,000 made to him at the time. I cannot see this as a matter from which I could draw the conclusion that there is a risk of dissipation. It has never been raised before and, in any event, drawings from the director’s loan account before and since have been more or less consistent.
Mr Hunter next relied on the purchase in 2015 of “speculative” property developments in place of the “mature, safe” rent generating properties which had been sold the previous year. Mr Hunter characterised the acquisitions in 2015 as a "spending spree" undertaken by the companies at the direction of Shahar. Yet Mr Thrower, in his evidence, dealt in detail with these investments, the purchase price, development plans, expected returns, from which it appears that the investments are sound and, moreover, of realisable property within the jurisdiction. On Mr Thrower's uncontested evidence these are good investments conducted by the companies in the ordinary course of business.
I move to the purchase in 2015 by the companies of a convertible Bentley for £70,000 and of two leased penthouse flats, described by Mr Hunter as "fritterings". Mr Hunter accepts that in the context of a multimillion pound property business these are not high value, but he submits that they are nonetheless an indicator of the way things are going in the lead up to the imminent judgment by the Israeli court for a substantial balancing payment to be made by Shahar to Maya.
I cannot accept that there is any risk of dissipation to be drawn from these acquisitions by the companies. If the Bentley is for the use of Shahar, and Mr Moeran confirms it is, then he needs a car. I note that both he and Maya appear to drive high end luxury vehicles.
As to the flats, there is uncontested evidence from Mr Thrower as to the reasons for the leasing, with option to purchase, of these properties. In any event, as Ms Jones pointed out, Shahar needs somewhere to live. The matrimonial home is either on the market or soon to be on the market and the leasehold properties, like the car, are an asset with realisable value within the jurisdiction.
Mr Hunter points next to the provision of misleading information to KPMG, as appears from a document exhibited recently by Mr Thrower in which the value of Megaclose is given as -£4.1 million. It seems that this figure was prepared using forced sale assumptions. The provision of this document to KPMG indicates, suggested Mr Hunter, a willingness to “game” the valuation process downwards and is a further indication of how Shahar is behaving as judgment day in Israel approaches. Mr Hunter pointed also to the delays in providing information to KPMG.
I do not accept that the valuation document was misleading as it is apparent from its face that the figures were on the basis of an immediate sale of assets. But in any event, KPMG are professionals. They are able to call for information, then to sift through and analyse it, to arrive at a proper valuation figure. It is, after all, what they have been appointed to do. As part of their task, they will no doubt take a view and discard unhelpful information, also call for any relevant material with which they have not been provided. Indeed, this is just what they have done; see the orders of the Israeli court made last year and this.
The Israeli court has been well able to deal with delay and obfuscation. Despite the delay complained of there is no actual dissipation that Maya has been able to point to, save for the last minute submission about the August 2014 payments, which I have dealt with above.
For the reasons I have given, I am not satisfied that there is a real risk of dissipation grounded in fact as opposed to fear or suspicion or dislike. None of the matters relied upon for the existence of this risk before Mr Justice Haddon-Cave in December are now relied upon before me. Each has been comprehensively addressed by Mr Shahar and Mr Thrower in their evidence in reply to Maya's first affidavit. Maya's recent witness statement in response to theirs effectively accepts that there is no longer any risk.
The different matters now relied upon by Mr Hunter do not, in my view, amount to evidence of a risk of dissipation, particularly when considered against:
i) The close supervision by the companies' lenders, given the highly geared nature of the companies' investments. I have not been taken to the banking documentation, but the obvious truth of this is not challenged by Maya's lawyers. Indeed, as I understood his submissions, Mr Hunter relied on the complexity of the lending arrangements in a general way for his suggestion that what he termed "speculative investments" had had the effect of making any judgment less easy to enforce, however there was no detailed examination before me of how this might have been the case.
ii) The fact that the companies' accounts are checked regularly by its lenders, by its accountants and through the auditing and taxation process by HMRC.
iii) The fact that the companies' lending is secured inter alia by a personal guarantee given by Shahar. Any sudden change in the companies' holdings would in all probability give its bankers good reason to call in the loans and to look to Shahar under the terms of his personal guarantee. Maya's position is aligned with the banks in this respect. They are no doubt as anxious as she is to see that their security, in the form of the companies' total assets, keeps its value.
iv) Lastly, the absence of any actual dissipation by Shahar of the companies' assets in the three and a half years since the couples' divorce in 2012. Is it just and convenient, and not inexpedient, to grant the freezing relief sought at paras 2(a) and (b) of the draft order?
I do not have to decide this point, given my decision on risk of dissipation. In my view, however, there are factors here which could have told either way.
The factors indicating convenience and expediency are obvious: Shahar is not living in Israel now having, it seems, made his home in one of the penthouse apartments leased by the companies, alternatively in the old matrimonial home. Thus he is resident in the UK; the companies' assets are also here. The assets that are located in Israel are plainly not of a value that could match the payment that is likely to be ordered, even at the lower end of the various estimates that have been canvassed before me.
On the other hand there are, in the case of a divorcing couple whose many grievances have been aired, considered and decided in another court, factors which could render it inexpedient for orders to be made here when the applications could be made to and considered by the other court, and its orders (if made) could then be enforced, if necessary by way of ancillary relief, over here.
In the Cuoghi
case, the court was unable to make the orders sought, whereas here the Israeli court could have been approached for the freezing order or the asset preservation order, as had happened in the past. In this case it is evident, having gone through all the many Israeli proceedings at some length, that that court has had considerable experience of the couple and would be in a better position, therefore, to be able to pick its way through the invective and hyperbole so as to arrive at a proper appreciation of whether one party's concerns, however genuinely held, are in fact properly justified or not.
In this case, as it turns out, there was not the basis for the concern about dissipation that Maya feared. Neither Mr Justice Haddon-Cave at the without notice hearing nor I at this hearing have had any previous experience of the couple, let alone the very extensive experience that the Israeli court plainly has. Obviously each case will depend on its own facts, including in particular the facts pertaining to dissipation. As I have said, in this case I do not need to reach a concluded view.
Preservation of assets – para 3 of the draft order
Paragraph 3 of the draft seeks an order preventing Shahar from dealing with or disposing of his shares in the companies. Mr Hunter invited me to apply American Cyanamid principles, citing the case of Madoff Securities v. Raven
 EWHC 3102 (Comm). He submits that there is a good arguable case for such an order and that the balance of prejudice weighs heavily in Maya's favour.
Ms Jones challenges the proper application of American Cyanamid principles, on the basis that the relief is sought in support of the Israeli proceedings and those are for a money claim not a proprietary claim. Maya is not entitled, she says, to seek proprietary relief on American Cyanamid principles in support of a money claim. She submits that what Mr Hunter seeking to do here is an illegitimate attempt to obtain security via a freezing order.
I agree. In circumstances where Maya's claim in Israel is for a money judgment, she is not entitled to seek a proprietary claim here under section 25. In order to obtain relief preventing Shahar from dealing with his shares, freezing order principles must apply. For all the reasons given above, Maya has, in my judgment, failed to establish an entitlement to freezing relief.
I return to the secondary basis upon which this proprietary relief is sought below in connection with Mr Hunter's application to amend his claim form.
Provision of information - paras 4-8 pf the draft order
Paragraph 8 is no longer the subject of any claim, as Shahar and the companies have undertaken to provide to Maya and her lawyers the information that has gone to KPMG. The remaining paragraphs are sought on two bases.
The first is under section 25 of the Civil Jurisdiction and Judgments Act 1982, the disclosure orders being ancillary to the financial restraint provisions, for "policing" purposes, as Mr Hunter put it. On that basis, they must stand or fall with the grant or otherwise of the order under paragraphs 2(a) and 2(b).
In this case they fall, since, for the reasons given above, I am not prepared to make an order in the terms sought under those paragraphs. I should add that I would have refused the disclosure paragraphs in any event as going far wider than necessary for a proper policing of the financial restraints sought under paragraphs 2(a) and 2(b).
Secondary basis for disclosure – application to amend
There is a secondary basis upon which the disclosure orders were sought by Mr Hunter and Ms Brown, in connection with which I have before me an application for permission to amend the claim form to add a freestanding claim to enforce the provisions of clause 12 of the Divorce Agreement (set out above) given an alleged contractual entitlement to be provided with information about the companies.
This is not a claim made under section 25 of the Civil Jurisdiction and Judgments Act to support proceedings in Israel but a claim in contract based upon the provisions of the Divorce Agreement. Mr Hunter drew my attention to paragraph 4 of the Israeli court order, arguing that by this paragraph the Israeli court carved out jurisdiction for the courts of England and Wales on anything to do with the companies and their assets based here. I have been taken to apparently conflicting expert reports from Israeli lawyers as to the effect of that provision.
Ms Jones and Mr Moeran resist the application, firstly as being precluded by the exclusive jurisdiction clause in the Divorce Agreement under which the parties agreed that the Israeli court should hear and determine all matters arising out of the Divorce Agreement. Secondly, in any event, they argue that application of the principle of forum conveniens dictates that Israel is the proper forum for an issue of disclosure of information, not least as the Israeli court has in fact been making orders for the provision of information about the companies, the latest such order being made on 2 February this year.
Towards the end of his submissions in reply, Mr Hunter suggested that his application to amend the claim form to include the freestanding contract claim be adjourned pending an application to the Israeli court for clarification of the interplay between clause 12 of the divorce agreement and paragraph 4 of the court's order, and for determination of the jurisdiction issue. Mr Hunter accepted in argument that the purest approach may be to withdraw his application as being premature, pending that determination. But it became clear at the very end of Ms Brown's submissions that Maya's team were not going to withdraw its application, pressing instead for the adjournment which Mr Hunter had originally suggested.
With considerable misgivings, I am going to adjourn the application to amend to a fixed date before the end of term. I have spoken to the list office about a hearing on the 22nd or 23rd of this month (March). I anticipate that by then matters will have progressed substantially in the Israeli proceedings, KPMG will have reported, there will be a balancing figure either ordered or soon to be ordered and there may or may not have been an application to the Israeli court concerning the continued application and/or utility of the disclosure provision in the divorce agreement.
I was very attracted to the argument that I should refuse the application now, (a) because matters in Israel appear to me to have moved on from what was contemplated by the Divorce Agreement since the appointment of KPMG, and (b) since as far as I can see the Israeli court has in fact been exercising jurisdiction in the matter of disclosure of information. However, although I have heard three full days of submissions and been given some 20 lever arch files of documents, relatively little time at this hearing has been devoted to this particular issue. Moreover, it is the Israeli court that has this couple, their divorce and their very bitter wrangles arising out of it, in their hands. That court is the right court to determine whether and where any contractual claim for disclosure in respect of the companies ought to be made and determined.
I cannot ignore the expert evidence (although I have not been taken to it in any detail at this hearing), which is equivocal. Having read what the Israeli law experts have said, it seems to me just possible, and I put it no higher, that the Israeli court may decide, firstly that there is some remaining utility in permitting a contractual claim for disclosure of company documents, notwithstanding that KPMG have had them and are shortly to report on them, and secondly that the proper forum for such a claim should be here where the companies are. 88.That being the case, it would be wrong, in my view, to reach a final decision on the application to amend today. I propose to reserve the case to myself for a hearing at the end of this month. I anticipate that, by then, matters will have resolved such that the application is either withdrawn or alternatively, if it is still pursued, I shall hear full argument at that time, including as to whether, if there has not been any further progress, the application should continue in abeyance or be finally dismissed.