Tonstate Group Limited & Ors v Edward Wojakovski & Ors

A lay person should be granted rights of audience only in exceptional circumstances and where there is good reason, assessed by reference to all the circumstances. Convenience alone is insufficient. Relevant considerations include the importance of the application, the potential consequences for the litigant and any vulnerability affecting the fair presentation of the case.

An adjournment requires a balance between the parties’ interests, taking account of urgency, the adequacy of the explanation for delay and the practicality of the proposed period. Permission to serve out in a claim under section 423 of the Insolvency Act 1986 requires satisfaction of the applicable gateway, a serious issue to be tried, England as the forum conveniens, and a sufficient connection with the jurisdiction.

The claimants sought disclosure concerning assets alleged to have been extracted without authority. The first defendant, Edward Wojakovski, appeared without legal representation and sought both permission for Michael Marx to speak on his behalf and a further adjournment.

The claimants also applied for permission to serve proceedings out of the jurisdiction on Gil Wojakovski and Tuvia Lewkovicz. The proposed claim concerned an alleged transaction intended to defraud creditors under section 423 of the Insolvency Act 1986, involving shares in an English company.

The court determined whether exceptional circumstances justified lay rights of audience, whether the disclosure application should be adjourned, and whether the requirements for service out were met.

1. Rights of audience. The court permitted Mr Marx to speak for Mr Wojakovski on this occasion. The applicable guidance, discussed in Ameyaw v McGoldrick [2020] EWHC 1741 (QB) and the Practice Note, required good reason and exceptional circumstances. The court considered the importance of the disclosure application, the potential consequences of non-compliance with existing orders, and concerns about Mr Wojakovski’s health and ability to follow complex matters. The court would approach Mr Marx’s submissions with appropriate care in light of reservations about his reliability.
2. Adjournment. The application for a further adjournment was refused. The matter was urgent because the disclosure sought might identify the whereabouts of assets, and existing orders had not been fully complied with. Mr Wojakovski had not shown sufficient reason for further delay, and the proposed period was uncertain. The court could fairly determine difficult legal issues involving a litigant in person and could receive assistance from the claimants’ legal representatives. The balance of interests therefore favoured proceeding.
3. Service out. Permission was granted to serve out on the terms sought. The court identified four requirements: a good arguable case within an applicable gateway; a serious issue to be tried; England as the forum conveniens and an appropriate forum as a matter of discretion; and a sufficient connection with the jurisdiction. A claim under section 423 fell within Gateway 20, following Orexim Trading Limited v Mahavir Port & Terminal Private Limited [2019] 1 All ER (Comm) 15. The suspicious timing of the transfer, viewed with the surrounding circumstances and absence of an explanation from Gil, established a serious issue to be tried despite possible innocent explanations. The proposed challenge concerned English assets, English creditors and the effects of English court orders, providing the necessary jurisdictional connection.

The judgment records earlier disclosure, contempt and service-related orders in the proceedings. No appellate history is stated in the judgment.