ADS Securities LLC v Lars Windhorst

1. MR JUSTICE CALVER:

2. In relation to the claimant's application for summary judgment, the defendant wrote to the court yesterday, 15 January 2026 at 4.22 pm, and he stated that he is presently in the UAE. He said: "I have been advised that it would be unlawful, both under the law of England and Wales, and under the law of the UAE, for me to conduct court proceedings in England by video link from my office in the UAE without special permission from the Foreign Ministry in Dubai, which I'm unable to obtain in time. In these circumstances, I am bound to ask that the hearing be adjourned in order that I may either obtain the necessary permission here, or appoint solicitors, or conceivably travel to England in order that submissions may be made on my behalf at the hearing. I apologise to the court for the inconvenience which this may cause."

3. In response to that, my clerk sent the defendant an undertaking inviting him to agree to that, in order that he could attend this hearing by video link as opposed to conduct the proceedings. But he didn't give that undertaking. Instead, he said in an email dated 16 January, at 8.50 am, that is today: "I am not looking simply to watch the court hearing by video link, but to conduct the proceedings, representing myself and making submissions to the court."

4. He then referred to something he found on the English Foreign Office website, which referred to the fact that this country had not been able to obtain the agreement of the government of the UAE to allow requests to allow individuals in the UAE to voluntarily give evidence from the UAE by video link in UK civil, commercial or administrative tribunals. He says that advice appears to relate to the giving of evidence voluntarily by video link.

5. The application to adjourn these proceedings is opposed by the claimant, and the claimant has set out in a letter dated 15 January, as well as a further letter of 16 January, the reasons why it opposes that application. In particular, it seems to me that the defendant is confusing the purpose for which the video link would be used in this case.

6. CPR 8.4, subparagraph (2) provides that: "This rule applies where -- "(a) the defendant has failed to file an acknowledgment of service; and "(b) the time period for doing so has expired" (which is this case) Subparagraph (2) provides: "The defendant may attend the hearing of the claim but may not take part in the hearing unless the court gives permission."

7. No application for permission has been made by the defendant and everybody was proceeding on the basis, therefore, that the use of the video link in this case for the defendant would be so that he could attend the hearing, but he wouldn't be entitled to take part in it unless he chose to make an application for permission to do so, which has never been forthcoming.

8. I should also add that the claimant's solicitors, in any event, take issue with what is said about UAE law, but I do not really need to go into that for the purposes of determining this application for an adjournment.

9. In the circumstances, it seems to me that there is no basis for adjourning these proceedings. It was open to the defendant to attend by video link if he wished to; he has chosen not to. The application was made at the 11th hour -- indeed, at the 12th hour -- without merit, and the claimant has pointed out that this has become a bit of a pattern in this action on the part of the defendant and related companies.

10. In all those circumstances, I refuse to adjourn this application and I will go on to hear the application for summary judgment. Judgment

11. MR JUSTICE CALVER: This is the hearing of the claimant's application for summary judgment in respect of a debt claim against the defendant, Mr Windhorst. The part 8 claim is set out in a claim form dated 17 September 2025, together with the first witness statement of Mr Hooker and its exhibit.

12. The claim in this case concerns the debt owed to the claimant by the defendant under a revised and amended settlement and rescheduling agreement dated 21 June 2021, what I will call the "settlement agreement".

13. So far as the part 8 claim is concerned, the claimant arranged for the part 8 claim documents to be delivered via first class post and special delivery to a company known as Tennor International Services B.V. (UK) (whom I shall call "Tennor"), at 6th Floor, 23 Savile Row, London, W1 2ET. That was a good service, and in particular under clause 15.2 of the settlement agreement, Mr Windhorst irrevocably appointed Tennor as his agent for the service of legal proceedings in connection with the agreement.

14. Mr Hooker also exhibits a photograph of the package containing the part 8 claim documents that were sent by first class post and Royal Mail proof of delivery related to the part 8 claim documents, confirming that the part 8 claim documents were indeed delivered to the Savile Row office of Tennor and were signed for on Friday, 19 September 2025.

15. In accordance with CPR 6.1(4) and 7.5, subparagraph (1), service of the part 8 claim documents is deemed to have taken place on Monday, 22 September 2025. That meant that the defendant was required, pursuant to rule 8.3(1)(a) to file an acknowledgment of service within 14 days of that date, namely by 6 October 2025. However, as I have already mentioned, the defendant failed to file an acknowledgment of service by that date or indeed at all, and there has been no application for any extension of time to serve an acknowledgment of service.

16. The following month, the claimant served this summary judgment application on the same agent, Tennor, at the Savile Row premises, and proof of service has also been provided by the claimant.

17. In addition to seeking summary judgment before me under CPR 24.2, the claimant's application also seeks the court's permission to apply for summary judgment pursuant to CPR 24.4(1)(a).

18. As far as the background to the claim is concerned, the recitals to the settlement agreement themselves helpfully set out the essential background. In short, since 2015, ADS, the claimant, has entered into a series of agreements with Mr Windhorst and others, and companies controlled by him, pursuant to which the claimant performed various services for them.

19. On 22 March 2017, Mr Windhorst confirmed on behalf of the company known as Sapinda Asia, that it had accrued negative balances of €594,000-odd, $174,130,055, and that it had accrued additional liabilities to the claimant pursuant to other agreements.

20. Accordingly, on 18 May 2018, the claimant commenced proceedings against Mr Windhorst in the English commercial court in connection with something called "the meridian claim". Then on 31 May 2018, the parties entered into a settlement and rescheduling agreement, pursuant to which Mr Windhorst and the company, Sapinda Asia, agreed to make scheduled repayments to the claimant, as well as performing other obligations.

21. The parties to that agreement agreed to revise it on three subsequent occasions in 2018 and 2019. However, Mr Windhorst and Sapinda Asia continued to fail to honour the agreement. As at the date of the settlement agreement, the total amounts which were currently owed to the claimant by Sapinda Asia, which were guaranteed by Mr Windhorst, were some $578 million.

22. There then followed negotiations between the parties in an attempt to conclude a final settlement agreement, but those settlement negotiations ultimately did not bear fruit.

23. Mr Windhorst's obligations under the 2021 agreement include the following: (1) By clause 3, he had imposed upon him a series of obligations which he was required to satisfy with various deadlines. Those included obligations to make scheduled cash payments, to deliver specific securities, and to enter into a separate SPA, known as the Fyber SPA, in connection with the sale of company shares. If those obligations under clause 3 were met, then Mr Windhorst would have become entitled to a release of all of the other obligations which he owed to the claimant. (2) Importantly, under clause 6.2, it was provided that: "Upon occurrence of an Event of Default which is not cured within 10 Business Days and notice is given to Mr Windhorst, the Parties agree that ..." And then in subparagraph (e): "Any calculation of the Default Balance in accordance with Clause 6.2(a) [of the agreement] shall be made solely by [the claimant], and shall be binding on all parties. Mr Windhorst and Sapinda Asia agree that any amount so calculated by [the claimant] shall take effect as a debt, for which they shall be jointly and severally liable."

24. The default balance is defined in paragraph 6.2, subparagraph (a), and at that time the default balance was equal to $578 million, less various specified amounts, or in fact, amounts that could be either added or deducted, depending on the circumstances. Furthermore, under clause 6.2(d), Mr Windhorst agreed that interest on the default balance would accrue at a rate per annum of 5 per cent.

25. Events of default, as described in the settlement agreement, arose very quickly after its conclusion, as Mr Hooker explains in paragraphs 21 to 24 of his first witness statement, and in particular paragraph 22. In fact, the defendant only satisfied one of the eight separate obligations to which he agreed under clause 3.

26. In particular, he failed to meet the deadline for delivery of $119,200,000 in bonds that he had agreed to deliver by 16 July, 2021. Indeed, in December 2022, Sapinda Asia went into liquidation, which triggered a further event of default, see paragraph 24 of Mr Hooker's statement.

27. Accordingly, on 23 July, 2021, the claimant issued its notice of default in a letter to Mr Windhorst and Baker McKenzie, his then solicitors, on the headed note paper of BSF. Mr Windhorst failed to respond to that notice, and indeed has failed to respond to subsequent notices.

28. Importantly, in March 2025, the parties attempted to enter into a further rescheduling settlement agreement, under which Mr Windhorst would have been required to pay $519,280,458 in full within 15 weeks of the proposed agreement. That proposed agreement, however, was ultimately not concluded. The importance of it is this: that Mr Windhorst purported to execute as a deed the copy of the rescheduling agreement, which is in the bundle exhibited to Mr Hooker's first witness statement. At clause 2.1 of that deed, there is a section dealing with "Confirmation of liabilities". That clause reads as follows: "Mr Windhorst confirms and agrees that as at the date of this Agreement, the quantum of the Debt Balance (inclusive of interest and subject to such adjustments as fall to be made by application of Clause 6 of the 21 June Agreement) is USD 519,280,458 (such sum being the 'Debt Balance'."

29. By clause 2.2, Mr Windhorst agreed and confirmed that "as at the date of the agreement, he is jointly and severally liable to pay the Debt Balance to [the claimant] pursuant to 21 June agreement".

30. The relevance of this clause is the fact that Mr Windhorst thereby confirmed in writing that this debt of $519,280,458 was indeed due and owing. This was an admission by him in writing as to his liability for that sum.

31. Indeed, the parties agreed that that was the sum which was outstanding because the claimant itself signed a rescheduling agreement to similar effect, containing the same clause 2.1, around the same time. One sees that exhibited to Mr Hooker's second witness statement.

32. Accordingly, the claimant seeks summary judgment in the sum which, it maintains, Mr Windhorst thereby admitted was due and owing.

33. So far as the requirements for summary judgment are concerned, CPR 24.4, subparagraph (1) provides as follows: "A claimant may not apply for summary judgment until the defendant against whom the application is made has filed an acknowledgment of service or a defence, unless -- (a) the court gives permission; or. (b) a rule or practice direction states otherwise."

34. As I have said, the defendant has not filed an acknowledgment of service, and accordingly, Mr Hooker rightly seeks permission on behalf of the claimant from the court, under CPR rule 24.4(1). Where it is necessary to seek permission under that rule, it is appropriate for the claimant to issue both the application for permission and the application for summary judgment in the same notice, as the claimant has done in this case.

35. The relevant factors in granting permission under CPR 24.4(1) were summarised by Mr Justice Bryan in European Union v Syria [2018] EWHC 1712 (Comm) at 61, and I set that passage out in the judgment at this point: "61. In this regard the following guidance can be derived from the authorities: (1) The purposes of the rule are to ensure that no application for summary judgment is made before a defendant has had an opportunity to participate in the proceedings -- see Citicorp Trustee Company Limited v Al Sanea [2017] EWHC 2845 (Comm) at [59]; and to protect a defendant who wishes to challenge the Court's jurisdiction from having to engage on the merits pending such application -- see Speed Investments v Formula One Holdings [2005] 1WLR 1233 and Trafigura Beheer BV v Rembrandt Limited [2017] EWHC 3100 (Comm) at [14]. (2) Generally permission should be granted only where the Court is satisfied that the claim has been validly served and that the Court has jurisdiction to hear it -- see Philips v Avena [2005] EWHC 3333 (Ch) at [22] - [23], Citicorp Trustee Company Limited v Al Sanea at [46] and Trafigura Beheer BV v Rembrandt Limited at [13]. As was said in Citicorp Trustee Company Limited v Al Sanea, once those conditions are met there is generally no reason why the Court should prevent a claimant with a legitimate claim from seeking summary judgment. (3) The fact that a summary judgment may be more readily enforced in other jurisdictions than a default judgment is a proper reason for seeking permission under CPR 24.4(1) -- see for example, Trafigura Beheer BV v Rembrandt Limited at [10] and BOC Aviation Limited v Kingfisher Airlines Limited [2018] EWHC 194 (Comm) at [4]."

36. I am wholly satisfied that I should grant permission to apply for summary judgment in this case. The defendant has been given plenty of opportunities to participate in these proceedings. He instructed solicitors. Certainly, solicitors were instructed right up until the eve of this hearing by him, when they were then dis-instructed, which led to his application for an adjournment.

37. It appears that the failure to acknowledge service may also be part of his tactical attempt to put off the fateful day when he has to repay the relevant debt.

38. Moreover, the court clearly has jurisdiction over the claim. This is a debt claim under the settlement agreement under which the parties expressly provided that the English courts would have exclusive jurisdiction, and the defendant appointed his agent, as I have already explained, Tennor, to accept service of proceedings in London. Everything has been properly served upon that agent.

39. Last, as Mr Hooker points out, if the claimant is to have any prospect of enforcing a judgment against the defendant, even in part, it is highly likely it will need to pursue a complex cross-border enforcement process. The claimant clearly has legitimate reasons for seeking summary judgment in this case.

40. Turning to the merits of the summary judgment claim, it seems to me that the merits are overwhelming and that the defendant has no prospect of defending the claim. The fact is that the defendant has admitted that the relevant sum is due in the circumstances that I have described, and I consider that he has no real prospect of succeeding in his defence. There is no other compelling reason why the case should be disposed of at a trial.

41. Accordingly, there is no reason why the court should not grant summary judgment at this stage. The claimant has set out the sum that it seeks, as well as the interest calculation on that sum, and in all the circumstances, I consider that it is entitled to summary judgment in those sums.

42. Mr Hooker has drafted a draft order to accompany the application and accordingly, I shall turn to that now with him in order to finalise the terms of the court's order. Judgment (Costs)

43. MR JUSTICE CALVER: There is an application before me by Mr Hooker for costs of the summary judgment hearing on the standard basis. The hourly rates which are claimed are quite substantially above the guideline rates by some 40 per cent or so, and the full sum claimed is £125,000.

44. Doing the best I can, a broad brush assessment, it seems to me that the fair figure is £90,000. So I order that that sum should be paid by the defendant. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]