Lorimer-Wing v Hashmi

An appeal against an unless order asks whether the court exercised its discretion correctly on the information available when it made the order. Later events do not retrospectively invalidate it, though they may inform directions in remitted proceedings. Where the order specifies a sanction that follows automatically on non-compliance, the order itself must be challenged; relief from sanctions is a distinct application. Article 6 does not require an unless order to be set aside where an independent court will still determine the dispute. A valuation order cannot stand once the report on which it rests is accepted to be deficient.

Mr Hashmi petitioned under s 994 of the Companies Act 2006 alleging unfair prejudice in the affairs of Fore Fitness Investments Holdings Limited. After the court ordered Mr Lorimer-Wing to purchase Mr Hashmi’s shares at fair value, unpaid costs orders led ICC Judge Barber to make an unless order debarring Mr Lorimer-Wing from further participation. Deputy ICC Judge Agnello KC later fixed the share value largely on the basis of Mr Hashmi’s expert report.

After the expert and the ICAEW raised concerns about that report, Mr Lorimer-Wing appealed both orders. The quantum appeal was unopposed, but the parties disagreed about the terms for remitting valuation and whether the unless order should be set aside. The central issues were whether the later evidence made the unless order wrong or incompatible with Article 6, and what participation should be permitted in the remitted valuation proceedings.

1. The Unless Order Appeal was dismissed. The Quantum Appeal was allowed, the Quantum Order was set aside, and the valuation issue was remitted to the ICC with limited participation directions for Mr Lorimer-Wing.

2. The Unless Order prescribed a single sanction which took effect automatically on non-compliance. The appeal sought to set aside the order itself; it was not an application for relief from sanctions, and there was no separate discretion to revisit the specified sanction once triggered. The appeal therefore had to address whether the order was wrong when made, rather than whether it would have been made with knowledge of later events. Later developments could instead inform an application to vary the sanction or case-management directions on remittal.

3. Judge Barber had directed herself on the correct legal test and reasonably applied it to the circumstances then known. The judgment records that Michael Wilson and Partners v Sinclair [2017] 5 Costs LR 877 identified factors relevant to an unless order, and that MV York Motors v Edwards [1982] 1 WLR 444 addressed inability to meet a financial condition and the evidence needed to establish it. The financial findings and the underlying costs orders were not successfully challenged. The later defects in Mr Ashing’s report did not make those orders or the unless order wrong when made.

4. Article 6 did not require the unless order to be set aside. To the extent the argument was advanced, it was inconsistent with JSC BTA Bank v Ablyazov (No 8) [2012] EWCA Civ 1411 ([2013] 1 WLR 1331): the dispute remained for determination by an independent court. Article 6 did not require a different outcome on the changed-circumstances argument.

5. The Quantum Order could not stand because the parties accepted that the valuation report on which it rested was deficient. On remittal, Mr Hashmi could instruct a new expert. That expert was to receive the specified earlier reports, materials identifying the alleged flaws, and the correspondence acknowledging them. Mr Lorimer-Wing could see the new report and put proportionate written questions, which the expert had to answer for the court. The court relied on the expert’s duties under CPR 35 and those safeguards to reduce the risk of a repeat; the new expert was not to act as an advocate for a high valuation.

1. Chancery Appeals, High Court of Justice: In [2026] EWHC 1843 (Ch) , the appeal from the unless order was dismissed. The appeal from the quantum order was allowed, that order was set aside, and the valuation issue was remitted with case-management directions.
2. Insolvency and Companies Court: ICC Judge Barber made the unless order on 14 November 2024. Deputy ICC Judge Agnello KC fixed the fair value of Mr Hashmi’s shares on 4 March 2025.