Common use of XX XXXXXXX XXXXX Clause in Contracts

XX XXXXXXX XXXXX. It sounds as though there is going to -- you are going to then be -- if you are only serving evidence on Monday, the claimants will only receive it, obviously, by definition, on Monday. If we then have to have a discussion about, you know, where that takes us and further arrangements, it is rather unsatisfactory. MS DWARKA: I appreciate that, my Lord. I would hope arranging the necessary breaks for Xx Xxxxxxx might not be something too difficult to do, but I have not been privy to that part of the case at the moment, my Lord, so I don't really know what evidence we are putting. XX XXXXXX: My Lord, it is not particularly satisfactory, in circumstances where a month ago, on the second sitting day of the trial, Xx Xxxxx told your Lordship that medical evidence was in the course of being prepared. He said: XX XXXXXXX XXXXX: Well, if it is indeed issued. So far, all I have been told is that there is an intention to issue it but it hasn't been issued. MS DWARKA: Noted, my Lord. XX XXXXXXX XXXXX: Now, how long do you think you will need to respond to the points which were made about the documents and the pleadings? XX XXXXXXX XXXXX: Xx Xxxxx, how long do you think you will need? XX XXXXX: Well, my Lord, I can't know Xx Xxxxxxxxx'x mind but, myself, I would imagine between 10 and 20 minutes. I anticipate he will be of the same view. XX XXXXXXX XXXXX: All right. Thank you. Right, we will come back to the pleading points and what I call the authenticity point on Monday morning. You said before, Ms Dwarka, that Xx Xxxxxxx would not be available until Tuesday? MS DWARKA: As I understand it, Xx Xxxxxxx cannot be in court on Monday. XX XXXXXXX XXXXX: Why is that? MS DWARKA: I don't know, my Lord. I have just been sent instructions by email about the position and I have just relayed the message to you. XX XXXXXXX XXXXX: Well, the cross-examination of the claimants' witnesses went rather shorter. MS DWARKA: Yes. XX XXXXXXX XXXXX: That happens in trials. Therefore, Xx Xxxxxx was able to make his submissions about the pleadings and other related points this afternoon, so that accelerated things slightly. But there seems no reason why Xx Xxxxxxx, subject to the points about making appropriate accommodations and so on, should not be available on Monday afternoon, without there being an evidential basis for saying that he is not. It seemed, from what you are saying, that he would be available on Tuesday, so it seems unlikely that it can be a medical reason, which isn't part of the reason for accommodation to be made. MS DWARKA: Would you like me to send an email to all parties and yourself, my Lord, if I get further instructions on the reason why? XX XXXXXXX XXXXX: I think you will have to present, as I say, an evidential basis for it. It is not going to be sufficient, it seems to me, simply to say that he would prefer not to be in court until Tuesday. If there is -- MS DWARKA: I was not told that, my Lord. I was just told he would not be able to be in court on Monday. XX XXXXXXX XXXXX: Yes, I understand that. But it doesn't -- you will understand why it is not persuasive simply to be told that he will not be here until Tuesday. His evidence is the next event in this trial and, subject to there being some good reason to the contrary, he should expect to be starting his evidence on Monday afternoon. MS DWARKA: Yes, my Lord. Thank you.

XX XXXXXXX XXXXX. It sounds as though there is going to -- you are going to then be -- if you are only serving evidence on Monday, the claimants will only receive it, obviously, by definition, on Monday. If we then have to have a discussion about, you know, where that takes us and further arrangements, it is rather unsatisfactory. MS DWARKA: I appreciate that, my Lord. I would hope arranging the necessary breaks for Xx Xxxxxxx might not be something too difficult to do, but I have not been privy to that part of the case at the moment, my Lord, so I don't really know what evidence we are puttingOkay. XX XXXXXXXXXXX: My Lord, it is not particularly satisfactoryI have come prepared, obviously, to open the application in the usual way, and I anticipate that I might be speaking for a little over an hour. But if your Lordship has had the opportunity to read some of the documentation, in circumstances where a month ago, on the second sitting day of the trialparticular my fifth witness statement, Xx Xxxxx told Xxxxx'x witness statement in reply and my witness statement of last Friday in reply to that, it may be that your Lordship that medical evidence was in would wish to be rather more interventionist and get through this rather more quickly than the course of being preparedconventional way would do. He said: XX XXXXXXX XXXXX: Well, if I think it is indeed issuedgoing to take some time, Xx Xxxxx, however one goes about it. So far, all I have been told My experience of being interventionist is that there is an intention it's often a short route to issue it but it hasn't been issueda longer way around. MS DWARKAXX XXXXX: NotedCounterproductive, my Lord, yes, I see. XX XXXXXXX XXXXX: NowOne immediate question which seems to affect, how long do you think you will need I think, three of your suggestions is the position of the SFO and whether there is really any utility in this court spending time which is necessarily taken out of the trial considering issues which may turn out to respond to the points which were made about the documents and the pleadings? be completely academic. XX XXXXXXX XXXXX: Sorry, what's the point of considering those options which are contingent on the Crown Court coming down in favour of Xx XxxxxXxxxxxx'x application? Because it is going to take time to deal with this. XX XXXXX: Yes, how long my Lord. I see the point. My point is that the Serious Fraud Office is just plain wrong, my Lord. The points they take are points which are unarguable. Now, I'm not inviting your Lordship to reach that conclusion -- I can't; your Lordship has no jurisdiction to reach that conclusion. But if what I have called option one, namely, the Xxxxxxx loan, is still in play, the Serious Fraud Office doesn't have a monopoly in terms of deciding when cases are heard. They say this case should be heard four or five weeks from now. XX XXXXXXX XXXXX: Well, that's a different question. The timing, I accept -- they have said that. It doesn't mean that it will be. It may be that it can be dealt with by the Crown Court more rapidly. XX XXXXX: Yes, my Lord, I was thinking perhaps the end of this week. XX XXXXXXX XXXXX: That may be. I can't, of course, say anything about that, other than to, no doubt, express, as any other judge could, the hope that that might be possible. But I've got no influence over the lists in the Crown Court. XX XXXXX: No, my Lord, neither do you think you will needI. I can simply ask. XX XXXXXXX XXXXX: If that is right, is there really any utility in me considering those options and taking quite a bit of time to do so, where it may be completely academic? XX XXXXX: Well, my Lord, I can't know Xx Xxxxxxxxx'x mind butyes, myself, but one has to start somewhere. I would imagine between 10 and 20 minutes. I anticipate he will be of venture to suggest that a ruling from your Lordship, were it favourable, under the same viewfreezing order regime may conceivably have some beneficial effect when the Crown Court comes to consider the matter. XX XXXXXXX XXXXX: All rightI'm not sure about that, because the jurisdiction is different. Thank youXX XXXXX: One cannot say. RightI don't think, we in actual fact, it will come back add very long to the pleading points and what I call the authenticity point on Monday morning. You said before, Ms Dwarka, that proceedings today because Xx Xxxxxxx would not be available until Tuesday? MS DWARKA: As I understand it, Xx Xxxxxxx cannot be in court on Mondayis here. XX XXXXXXX XXXXX: Why is that? MS DWARKAI know, but Xx Xxxxxxx can also presumably be here on another occasion. XX XXXXX: My Lord, yes, of course. Can I don't knowsay this, my Lord. I have just been sent instructions by email about the position and I have just relayed the message to you. : shall we see how we get on -- XX XXXXXXX XXXXX: Well, no, I'm not sure we should, Xx Xxxxx. Because if there isn't really an answer on this point, then as regards the first three options, it seems to me that there isn't -- if it is right that it cannot go ahead without the approval of the Crown Court and the SFO has made it clear that it is going to oppose, so that is going to have to happen, and the principles are different, because it is a statutory jurisdiction, you will have to persuade me that it's worth this court now diverting itself from the trial to even entertain the matter. XX XXXXX: My Lord, we may be at cross-examination of the claimants' witnesses went rather shorterpurposes. MS DWARKAInsofar as Xx Xxxxxxx'x position is concerned, that only operates in relation to option 1. I had understood your Lordship to be talking, therefore -- XX XXXXXXX XXXXX: Is that right? XX XXXXX: Yes, it's right. XX XXXXXXX XXXXX: That happens Sorry, let's just think about that for a moment. Yes, that's right, isn't it, because the other -- he is not involved in trialsthe other -- XX XXXXX: No, not at all. Therefore, Xx Xxxxxx was able to make his submissions about the pleadings and other related points this afternoon, so that accelerated things slightly. But there seems no reason why Xx Xxxxxxx, subject In relation to the points about making appropriate accommodations other options, I served the witness statement which I served on the parties to these proceedings on Friday afternoon also on the Serious Fraud Office, and so on, should not be available on Monday afternoon, without there being an evidential basis for saying that he is not. It seemed, from what you are saying, that he would be available on Tuesday, so it seems unlikely that it can be a medical reason, which isn't part of the reason for accommodation their off-the-cuff response -- I have to be madevery careful what I say because I will be criticised from here to eternity if it is suggested that I am gilding the lily, but, as I read their response, it was, "Find out what Xx Xxxxxxx Xxxxx thinks about options 2 and 3 in particular", also I suppose option 4, "and come back to us". MS DWARKA: Would you like me to send an email to all parties and yourselfSo, my Lord, if I get further instructions on the reason why? detected -- XX XXXXXXX XXXXX: I think you will Have we got that communication? XX XXXXXX: We have to presentXx Xxxxx of the SFO, as I sayat the back of the court, an evidential basis for it. It is not holding up his hands and shaking his head, which perhaps indicates there was a certain amount of gilding the lily going to be sufficient, it seems to me, simply to say that he would prefer not to be in court until Tuesday. If there is -- MS DWARKA: I was not told that, my Lord. I was just told he would not be able to be in court on Mondaythere. XX XXXXXXX XXXXX: YesSorry, I understand hadn't realised there was a representative of the SFO in court. Is that right? XX XXXXX: Shall I sit down? XX XXXXX: My Lord, I didn't realise I would be addressing the court. I just turned up to see what would happen in these proceedings because, obviously, what's decided here has an impact in the Crown Court. But I received Xx Xxxxx'x application on Friday night. I think I responded to that. I'd have to check. But Xx Xxxxx seems to suggest I didn't make any response. XX XXXXX: My Lord, I wasn't suggesting there had been no response. On the contrary. I was suggesting Xx Xxxxx had invited me to come back after this hearing with your Lordship's reaction to the non-Xxxxxxx options so that the matter could be considered further. The Serious Fraud Office's concern appears, so far as I can tell -- Xx Xxxxx is happily here, so he can confirm or deny it does-- seems to relate primarily to Xx Xxxxxxx. I haven't -- you will understand why it is detected, so far, any objection which relates to my client, Xx Xxxxxxx. XX XXXXXXX XXXXX: I'm not persuasive simply sure whether they have had an opportunity to consider that. XX XXXXX: My Lord, they did reply very helpfully and very quickly after they received the evidence on Friday. My understanding of their response was that, in relation to Xx Xxxxxxx, they were going to oppose, and that was going to take a period of time in the Crown Court. But in relation to the other non-Xxxxxxx options, they wished to be told informed of your Lordship's view so that he will not be here until Tuesdaythey could further consider the matter. His evidence is the next event in this trial and, subject to there being some good reason to the contrary, he should expect to be starting his evidence on Monday afternoon. MS DWARKA: Yes, my Lord. Thank youThat seems perfectly sensible.

XX XXXXXXX XXXXX. It sounds as though there is going to -- And you are going to then be -- if you are only serving evidence on Monday, the claimants will only receive it, obviously, by definitionsay that, on Mondaythe facts of this case, there was a contract between Surge and LCF under which the commissions were paid to Surge and, therefore, unless the contract is either declared to be void or avoided, there can't be a claim. If we then have to have That's, in a discussion aboutnutshell, you know, where that takes us and further arrangements, it is rather unsatisfactory. MS DWARKA: I appreciate that, my Lord. I would hope arranging the necessary breaks for Xx Xxxxxxx might not be something too difficult to do, but I have not been privy to that part of the case at the moment, my Lord, so I don't really know what evidence we are puttingyour submission. XX XXXXXXXXXXX: My Lord, it is not particularly satisfactory, in circumstances where a month ago, on the second sitting day of the trial, Xx Xxxxx told your Lordship that medical evidence was in the course of being prepared. He said: XX XXXXXXX XXXXX: Well, if it is indeed issued. So far, all I have been told is that there is an intention to issue it but it hasn't been issued. MS DWARKA: Noted, my Lordyes. XX XXXXXXX XXXXX: NowWhat about this question, how long which is another one that's been exercising me: supposing that, when the contract is entered into, Xxxxx doesn't know of anything which might make XX XXXXX: Xx Xxxxxxx writes a note to say, "You appreciate this is all a scam, do you think you will need to respond to the points which were made about the documents and the pleadings? want" -- XX XXXXXXX XXXXX: Xx Xxxxx"This is a scam. I'm just raising money from the public to put it all in my pocket". Take a really extreme example. Now, what happens there, because Xxxxx then says, "Well, we carried on doing this marketing for LCF. We charged 25 per cent". That's what the monies represented, so they're paid under the contract. It may actually be very difficult, as a matter of contract law, to set aside that contract. Indeed, it may be valid because, when it was first entered into, it was a valid contract. But the payments which are made under it are plainly being made in breach of duty by the director and Surge actually knows that. So, if you are right in your submission, how long do you think you will needdoes what Xxxx Xxxxxxx says apply to that case? XX XXXXX: Well, my Lord, the first point is that it would give Surge a defence. The second point is -- XX XXXXXXX XXXXX: What, so you say that, even in those very extreme circumstances, Surge could keep the money? XX XXXXX: My Lord, although I can't know Xx Xxxxxxxxx'x mind but, myselfappreciate it is a habit of equity lawyers, I am always a little bit nervous of arguing by way of supposedly extreme examples. My first point is that, as I say, in those circumstances -- well, what Xxxx Xxxxxxx says is quite clear, and the claim would imagine between 10 and 20 minutesdepend upon setting aside the contract. I anticipate he will But my second point is -- XX XXXXXXX XXXXX: But how would one do that? XX XXXXX: Well, my Lord, my second point is that, on such extreme facts, it may very well be of the same viewcase that there was a successful argument that the money in that context was no longer being received pursuant to the contract, but pursuant to a new fraudulent bargain. XX XXXXXXX XXXXX: All rightBut why? On my example, the monies are still -- Surge is still selling the product. Thank you. They are putting in an invoice every, whenever it is, let's say every week, I can't remember, every month, whatever it was, saying, "Right, we will come back to have raised this much money. Please can we have our 25 per cent?" They are still providing services and they are charging the pleading points and what I call the authenticity point on Monday morningcontractual rate for them. You said beforeXX XXXXX: Yes, Ms Dwarka, that Xx Xxxxxxx would not be available until Tuesday? MS DWARKA: As I understand it, Xx Xxxxxxx cannot be in court on Monday. so -- XX XXXXXXX XXXXX: Why How is thatit then said, "Well, the payments are no longer being made under the contract"? MS DWARKA: I don't know, my Lord. I have just been sent instructions by email about the position and I have just relayed the message to you. XX XXXXXXX XXXXX: Well, the cross-examination of the claimants' witnesses went rather shorter. MS DWARKA: Yes. XX XXXXXXX XXXXX: That happens in trials. Therefore, Xx Xxxxxx was able to make his submissions about the pleadings and other related points this afternoon, so that accelerated things slightly. But there seems no reason why Xx Xxxxxxx, subject to the points about making appropriate accommodations and so on, should not be available on Monday afternoon, without there being an evidential basis for saying that he is not. It seemed, from what you are saying, that he would be available on Tuesday, so it seems unlikely that it can be a medical reason, which isn't part of the reason for accommodation to be made. MS DWARKA: Would you like me to send an email to all parties and yourself, my Lord, if I get further instructions on the reason why? XX XXXXXXX XXXXX: I think you will one would have to presentlook at the details of what the fraudulent director and fraudulent recipient had known and discussed, and, as I say, an evidential basis for it. It is not going to it may be sufficient, it seems to me, simply to say that he would prefer not to be in court until Tuesday. If there is -- MS DWARKA: I was not told that, my Lord. I on those facts, what would become apparent is that the money was just told he would not be able to be in court on Monday. XX XXXXXXX XXXXX: Yes, I understand that. But it doesn't -- you will understand why it is not persuasive simply to be told that he will not be here until Tuesday. His evidence is no longer being received under the next event in this trial and, subject to there being some good reason to the contrary, he should expect to be starting his evidence on Monday afternoon. MS DWARKA: Yes, my Lord. Thank youcontract.

XX XXXXXXX XXXXX. It sounds as though there is going What does the existing order say about the sale of the property? XX XXXXX: Simply that the court expects the parties to -- you are going collaborate in relation to then the price and, if they can't reach an agreement which would be -- if you are only serving evidence on Mondaysufficient, the claimants will only receive it, obviously, by definition, on Mondayto come back to court. If we then have to have a discussion about, you know, where that takes us and further arrangementsThat, it is rather unsatisfactoryfair to say, relates to this court and the civil jurisdiction. MS DWARKAIt doesn't deal with the Crown Court, whose consent or the consent of the Serious Fraud Office would be required separately. But you can see, my Lord, how the easiest iteration of this, with the practical intent of getting Xx Xxxxxxx'x barrister team back into court as quickly as possible, potentially as soon as tomorrow, is a combination of option 2 and option 3. Option 2 requires your Lordship's consent to my executing the subcharge over my existing charge in favour of the bridging loan. There would be a need to apply to the Serious Fraud Office, but only in relation to the interest element of £150,000, and I would hope that, in the interests of justice, an agreement could be made about so small a sum, in the scheme of things. And then, if your Lordship approved the sale at 3 million, that could go through and solve the problem completely. I am sure that Xx Xxxxx and his colleagues, if they were able to see your Lordship's order to that effect made today wouldn't insist on waiting for the money but would come back into court straight away. Now, it is not as good as the Xxxxxxx proposition, my Lord, because Xx Xxxxxxx'x proposition is interest free. That's the big attraction of it. Unfortunately, the Serious Fraud Office take a dim view of XX XXXXXXX XXXXX: Which one? XX XXXXX: 2 and 4 combined. XX XXXXXXX XXXXX: Why do they need to be combined? XX XXXXX: Because 2 gets the money quickly, 4 solves the problem, but it takes longer and it requires the agreement of the Serious Fraud Office to a sale at 3 million. So, I need 2, in any event. If you give me 2 and 4 -- XX XXXXXXX XXXXX: What happens if you only get 2? XX XXXXX: Then I don't have enough money. XX XXXXXXX XXXXX: So 2 is no good on its own? XX XXXXX: No, I need 2 and 4. I can see no reasoned objection to 4 because 4 is what everybody wants. Everybody has said, and option 4 was born out of this, speaking with one voice on behalf of all interested parties, they all say, "We want the property sold". Funnily enough, Xx Xxxxxxx says to me, "I want the property sold". XX XXXXXXX XXXXX: What about option 4 on its own? XX XXXXX: It doesn't get me the money fast enough, my Lord. 2 gives me speed. 4 gives me, in due course, the full amount and better security because I then own the title. I believe, my Lord, it is simply a matter of valuation, and, in relation to that, I repeat that Mishcon de Xxxx are sceptical. XX XXXXXXX XXXXX: Well, we could end up having a sort of Punch and Xxxx show, where we have lots of submissions, but I will hear briefly from Xx Xxxxxx at the moment, just to see what his position is. XX XXXXX: Yes, my Lord. The reason I press the point is this: the letter, I think, objects to options 2 and 3, if I'm not mistaken, solely on the basis that the extra interest charge, the cost of borrowing, would need to be secured on the property. Were it not for that, they would agree options 2 and 3. XX XXXXXXX XXXXX: How long is all this going to take, on your -- I have got no real evidence about it. It is very broad and vague. It is just a sort of suggestion which is being floated at the moment. XX XXXXX: My Lord, an awful lot was done between Tuesday afternoon and Friday. XX XXXXXXX XXXXX: That may be, but the court has to operate on the basis of some firm evidential basis. XX XXXXX: My Lord, I can help you there. XX XXXXXXX XXXXX: What I'm thinking about is, how long is everything going to take? How realistic is it that you will be able to raise finance? How quickly would Xx Xxxxxxx'x counsel be able to resume acting for him? Those sorts of things. At the moment, there's no evidence about it. XX XXXXX: My Lord, with respect, there is. The evidence in relation to your Lordship's first question, how long in relation to option 2, is -- XX XXXXXXX XXXXX: Just at the moment, I was thinking about 4. XX XXXXX: On 4, my Lord, that came to me very late in the day on Friday. There isn't evidence on that. I decided that I couldn't produce a full picture and wouldn't, quite frankly, because I don't see why I should subject my personal asset position to scrutiny by Xxxxxxx xx Xxxx and, through them, the entire world. That would be extremely unfortunate and quite unnecessary. XX XXXXXXX XXXXX: But option 2, you have said, doesn't work on its own. XX XXXXX: No, that's option 2, my Lord. XX XXXXXXX XXXXX: It comes with a cost. Leaving aside for a minute the argument about whether this is even something the court can get into, because the claimants are saying that I don't even have a power in relation to this, but leave that to one side for a minute. Supposing it was on the table of options. On its own, it doesn't work, but it has a charge attached, so it would be probably a surprising thing for the court to allow that to happen, given the cost, unless it was combined with option 4, so, in other words, unless the court was confident that option 4 was a real option, it would be a surprising thing to permit option 2. XX XXXXX: Well, my Lord, would it, with respect? XX XXXXXXX XXXXX: It would, because there would be a cost attached to it. Quite a substantial amount of money. XX XXXXX: Well, a relatively small amount of money in the scheme of this case. XX XXXXXXX XXXXX: What was it? XX XXXXX: 150,000. XX XXXXXXX XXXXX: Well, that's not an insignificant amount of money. XX XXXXX: It's not nothing, but by comparison with the amounts of money we are talking about in this case, my Lord, it is a drop in the ocean. But put that to one side, my Lord -- XX XXXXXXX XXXXX: I'm not going to put it to one side because I would only even think of approving it if I thought that it was a cost that was worth incurring, as it were. If it's only in combination with option 4 that it could possibly work, I would need to be satisfied that option 4 is workable, is practical, could happen, and I would need to know a lot more, it seems to me, about timing, how quickly would all of this happen, how quickly would it be possible to raise money on the property, what would it mean in practical terms for getting your client represented by counsel again. Those sorts of things. XX XXXXX: My Lord, I can help you on those. This morning, I had a conversation with counsel's clerk, in the usual way, and he confirmed to me that the three barristers, one of whom is present in court this morning, were keeping abreast of the case from the transcripts and receiving instructions from Xx Xxxxxxx as the hearings have progressed each day. So, they are fully up to speed. They wouldn't wait for the money. They would be satisfied, if your Lordship made the order, that the money would be forthcoming and they would be back in court potentially as soon as tomorrow. It might be Wednesday, it might be tomorrow. XX XXXXXXX XXXXX: But, as it were, irrevocably, or what happens then if you struggle to -- in fact struggle to raise money on the property? XX XXXXX: In fact, my Lord, I can share this with you and I can confirm it on a witness statement, if that would be of assistance, the money has been raised. XX XXXXXXX XXXXX: What, the mortgage? XX XXXXX: Yes. On the same basis as option 2, that is to say, it is credit backed, which means it has passed all internal credit processes imposed by the lender. It will produce a figure in the region of £2 million. And that would enable the purchase to go through. In fairness to counsel, we'd still want option 2 because that's certain and that's quick. XX XXXXXXX XXXXX: But option 2 involves the cost of £150,000 -- XX XXXXX: Well, my Lord, yes. I can't do the -- XX XXXXXXX XXXXX: -- which then comes off the assets which are available. XX XXXXX: Yes. But since this is a claim for £350 million or more -- XX XXXXXXX XXXXX: But it is also a claim where -- I can't remember what Xx Xxxxxxx'x overall assets are, but they are very far from being £350 million. XX XXXXX: Yes, my Lord. XX XXXXXXX XXXXX: So 150,000 has to be seen, I think, not in the context of the amount of the claim, but in the context of his available assets. XX XXXXX: Yes. XX XXXXXXX XXXXX: It is not an insignificant amount. XX XXXXX: I appreciate that, my Lord. But the position is, with respect, somewhat impossible. I would hope arranging the necessary breaks for considered this, which is why I approached Xx Xxxxxxx might not be something too difficult through Xx Xxxxxxx for an interest-free loan. I delivered that. That would have had no cost. But the Serious Fraud Office doesn't like it. XX XXXXXXX XXXXX: I am going to dotake up your invitation to hear briefly from Xx Xxxxxx, but I have not been privy to that part of the case at the moment, my Lord, so I don't really know what evidence we are putting-- let me just hear briefly from you, Xx Xxxxxx. Are you dealing with this? XX XXXXXX: My Lord, I will set out our position in respect of the various options in a moment, but it is, I think, important to focus on the issue that has prompted all of this, and that was Xx Xxxxxxx'x counsel team walking out, as Xx Xxxxx put it, symbolically, on the first day in court, although we now know from Xx Xxxxx that their deadline -- their final extended deadline for payment was the previous Friday. The payment itself, Xx Xxxxx tells us, had fallen due for payment in December. So, the question, as we see it, is whether there is any means of raising money to bring them, or some of them, back to court in the very near future so Xx Xxxxxxx can be represented by counsel during the period covered by the trial timetable. In fact, it turns out, based on what Xx Xxxxx said a moment ago, it is not particularly satisfactoryquite as xxxxx as that, in circumstances where a month ago, on because we are told they are reading the second sitting day of the trial, trial transcripts and taking instructions from Xx Xxxxx told your Lordship that medical evidence was in the course of being prepared. He said: XX XXXXXXX XXXXX: Well, if it is indeed issued. So far, all I have been told is that there is an intention to issue it but it hasXxxxxxx and haven't been issued. MS DWARKA: Noted, my Lordcompletely disengaged. XX XXXXXXX XXXXX: NowAt the moment, how long do Xx Xxxxxx, you're in a slightly difficult position here because Xx Xxxxx has invited me to ask you think you will need to respond to what your position is. You're opening now on your submissions -- XX XXXXXX: My Lord has seen our position in the points which were made about the documents and the pleadings? XX XXXXXXX XXXXX: Xx Xxxxx, how long do you think you will need? XX XXXXX: Well, my Lord, I can't know Xx Xxxxxxxxx'x mind but, myself, I would imagine between 10 and 20 minutes. I anticipate he will be of the same viewletter. XX XXXXXXX XXXXX: All right. Thank you. Right, we will come back to Your position is as per the pleading points and what I call the authenticity point on Monday morning. You said before, Ms Dwarka, that Xx Xxxxxxx would not be available until Tuesday? MS DWARKA: As I understand it, Xx Xxxxxxx cannot be in court on Mondayletter. XX XXXXXXX XXXXXXXXXXX: Why Absolutely. Option 1 has numerous problems that stand in the way. There has been no change in Xx Xxxxxxx'x circumstances and, therefore, no basis for releasing him from his proprietary undertaking and accepting a new one in different terms. There is that? MS DWARKA: I don't know, my Lord. I have just been sent instructions by email about a xxxxx admission on the position and I have just relayed the message to you. XX XXXXXXX XXXXX: Well, the cross-examination other side of the claimants' witnesses went rather shorter. MS DWARKA: Yes. XX XXXXXXX XXXXX: That happens in trials. Therefore, Xx Xxxxxx was able to make his submissions about the pleadings and other related points this afternoon, so that accelerated things slightly. But there seems no reason why Xx Xxxxxxx, subject to the points about making appropriate accommodations and so on, should not be available on Monday afternoon, without there being an evidential basis for saying that he is not. It seemedcourt that, from what you are sayingXx Xxxxxxx'x perspective, that he would be available this is designed to circumvent the debarring order and get him the benefit of expenditure on Tuesday, so it seems unlikely that it can be a medical reason, which isn't part legal defence costs. The terms of the reason for accommodation to be made. MS DWARKA: Would you like me to send an email to all parties and yourself, my Lord, if I get further instructions on the reason why? XX XXXXXXX XXXXX: I think you will have to present, as I say, an evidential basis for it. It is not going to be sufficient, it seems to me, simply to say that he would prefer not to be in court until Tuesday. If there is -- MS DWARKA: I was not told that, my Lord. I was just told he would not be able to be in court on Monday. XX XXXXXXX XXXXX: Yes, I understand that. But it doesn't -- you will understand why it is not persuasive simply to be told that he will not be here until Tuesday. His evidence is the next event in this trial and, subject to there being some good reason to the contrary, he should expect to be starting his evidence on Monday afternoon. MS DWARKA: Yes, my Lord. Thank you.loan are entirely