Thursday 17 September 2020

Our day in court

Proceedings have started on time in the latest case involving Charlton.   Lauren Kreamer is representing Panorama Magic, with Paul Chaisty for the applicant, Lex Dominus, as before. Judges are in. Lord Justice Levison and Lord Justice Males.

Chaisty is arguing that Gallen evidence is not relevant, reports Rick Everitt. Respondent has produced no evidence whatsoever to explain state of negotiations with third party in any sale - the current state of play - says Chaisty.

Chaisty: "There is no evidence from the respondent as to what it might lose in terms of financial consideration if an injunction is granted until November. There is total silence in respect of that. No evidence from respondent to show what the position is going to be if an injunction is refused." (reports Richard Cawley)

No evidence as to what contract, price or date of completion or identity of third party, says Chaisty. Extremely important if respondent says irremediable damage if injunction granted. No evidence third party would disappear either. Mihail's evidence is speculation about what risk to the club is in injunction grated, but nothing to show what happens if it isn't - Chaisty (via Rickster)

No evidence put forward to show club has spoken to EFL about the position which might prevail in a range of scenarios. Doomsday scenario disproved by the fact that the club has started the season, says Chaisty. Court left with speculation about potential consequences but with no evidence to form a view as to likelihood.

LJ Lewison says Mihail sets out hypothesis that injunction is granted and LD succeed at trial then ties consequences to that scenario. So to determine whether damages are an adequate solution for Panorama is that injunction is granted by LD loses at trial.

LJ Lewison says that Judge Pearce's ruling may be based on the wrong hypothesis. Chaisty says that MM assumed that Elliott's disqualification is final ruling, which is false.

Elliott pursuing right of appeal with arbitration panel, says Chaisty. EFL disqualification based on misleading evidence provided by Elliott about the SPA. MM's evidence has no foundation because there is an appeal process.

Chaisty saying Paul Elliott pursuing an appeal to overturn the EFL decision on August 7 relating to the OADT ruling."If he succeeds at trial we know damages will not be an adequate remedy. Panorama is a company based in Abu Dhabi with no money."

LJ Males says more fundamental point is whether Mihail has given any evidence about what will happen if injunction granted and claim ultimately fails.

Chaisty saying Mihail's evidence that Elliott can no longer appeal the EFL verdict is "totally misconceived". Basically MM saying that SPA agreement alone wouldn't be enough to push through a deal for CAFC. Chaisty making point that individual can appeal OADT test.

Both judges have wanted Chaisty to focus on Mihail's witness statement, that's why we're on that subject now.

No evidence put forward that EFL embargo will change if the injunction refused, says Chaisty. Mihail suggests club will be expelled if Elliott owns club but cannot be a relevant person under EFL rules. Chaisty says this ignores commercial position for LD.

CAFC Facts and Stats comments, 'Mihail getting hammered again.'

Only statement re third party is that Nimer remains committed to finding a buyer. Court unable to find evidence from Mihail that ESI would suffer any harm from injunction, says Chaisty.

Steve Gallen's evidence criticised for making statements as if they are based on fact. Gallen not now a director of the club, Chaisty tells judges. Gallen explains reason for embargoes, and suggests that cause of them remaining is Elliott's disqualification.

LJ Lewison says not down to Elliott, underlying documents show that ESI has failed to satisfy source and sufficiency of funds. LD hasn't reached that stage with the EFL. LJ Lewison making clear that EFL embargo is down to ESI not passing the governing body's criteria.

Chaisty - source and sufficiency of funding for PE has not been dealt with yet. "Mr Gallen is confusing my client with ESI when he says they've had seven months to provide EFL."

Chaisty says difficult to understand. LD dependent on the support of Elliott. Chaisty says that Heller offered £100k for the shares of ESI at one point. Elliott offered guarantee of £50k, presumably against damages.

LJ Lewison suggets proceeds of sale could be frozen to protect LD's interest. Chaisty says hypothetical and we don't know what deals might be struck, including independently with Nimer, by which funds might be channeled.

Chaisty: over-emphasis on seriousness of consequences, not to Panorama but to the club, but no evidence as to the likelihood of those consequences coming about.

Chaisty notes that Pearce said history of the club is something he can take into account. No precedent for taking into account third party interests, he says. Not a public interest case, just parties interested in the outcome.

Pearce did not take account of £500k put in by Elliott in June, says Chaisty. Ruling outside reasonable disagreement, factors including fate of CAFC given unreasonable weight, failure to consider absence of evidence on key points from Mihail.

Kreamer takes the stand

Lauren Kreamer is now addressing the court.

She argues that appellant court should only interfere between two imperfect solutions when judge has exceeded generous ambit within which reasonable disagreement is possible. The focus is now on technical legal arguments so report will not go into them. Kreamer told to get on with her 'substantive submission'.

LJ Lewison asking whether damages would be adequate to Panorama Magic if Lex Dominus obtained an injunction but lost the case.

I'm getting the impression that the judges do not think the fate of the club is the issue in law here. LJ Lewison says that first risk MM described is of club not being able to start season. Second is points deduction. LK says they are continuing risks, not gone just because the season has started and the EFL has not imposed sanctions yet. LK saying those punishments (points deductions) can come "a considerable time" after the event.

Also discusses the likelihood of redundancies being made. Wants this court to take it into account.

LJ Males asks why court is forced to rely on "rather unreliable" evidence from journalists and not from the respondent. LJ Lewison asking why have to rely on press reports [Louis 'Unreliabke' Mendez] and social media for that information. LJ Lewison says doesn't say anywhere in evidence that "we've got a buyer, here are the terms of the deal." No evidence provided that a particular deal will be lost if an injunction is granted. [Judges apparently not too impressed with evidence base].

LJ Lewison: no challenge to evidence that £500k has been put into the club. LK says no evidence it come from PE. Could have put evidence before the court about the provenance of those sums and hasn't.

LJ Lewison says that Judge Pearce was relying on Mihail's hypothesis which is not what the court should be looking at. LK submits that Pearce does refer to the consequences of an injunction being granted, not simply the outcome of a later trial.

LK: significant liabilities in respect of which personal guarantees have been given by both the respondent and CAFC. So PM and club stands to lose a lot more if a willing buyer is lost. LJ Lewison didn't know about these liabilities. All new to him, he says. LJ Lewison says that he would have liked notice of these points. LK says that it shows CAFC as first guarantor and PM as second guarantor for these substantial amounts. LK: £1.7m or more due depending on net property valuation and deferred contingent payments on status.

LK: Chaisty said undue consideration was given to Charlton Athletic, but LK argues that court may have regard to other connected parties. Chaisty argues that CAFC is at heart of dispute but then says it should not be given such weight, she says. [His argument is that the case is about the dispute between the two litigating parties].

Nothing in Judge Pearce's ruling goes outside deciding between two imperfect outcomes. Not the role of the Court of Appeal to revisit that. Kreamer finishes her case, not up to Chaisty to respond if he wishes.

Chaisty responds

He says considerable reliance placed by LK on Gallen's evidence. Concerned about that if appeal is rejected. Gallen has sought to explain what Mihail was saying. PM shouldn't be allowed to rely on evidence that should have been before court below.

Chaisty: "For some reason or another her client has chosen to remain absolutely silent over where negotiations are with a third party." Says LK cant get over MM's silence about state of play of negotiations and actual position that it is in with third party. LD only produced press reports to request short term relief in respect of this appeal.

Chaisty says Elliott's evidence is clear that he has put £500,000 in. Net assets of £12m.' I haven't seen anywhere his statement has been challenged.' Unreasonable to do so now.

Court adjourns for lunch

LJ Levison saying court will adjourn and resume again at 2pm. "I hope by then we'll be in a position to give you an answer."

Proceedings after lunch will be the subject of a separate report.

Kreamer has put her case vigorously, but on the basis of interventions by the judges, I am not sure how well it stands up legally.

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