Zvi Dekel v Clerkenwell Lifestyle (UK) Limited & Ors

ICC Judge Agnello KC : Introduction

1. By application notice dated 10 October 2025, the Second and Third Defendants seek a stay of the underlying proceedings (the CLL UK Claim) until the final determinations of appeals currently pending in the BVI Courts. Clerkenwell Lifestyle Limited (CLL BVI) is the BVI incorporated parent company of the First Defendant (CLL UK) which is the subject matter of the CLL UK Claim. Both claims are derivative actions which require permission of the court (under a two-stage process). It is agreed by all the parties that the derivative claim in the CLL UK Claim and the derivative claim in the BVI proceedings relate to almost identical facts.

2. There is also an application for directions dated 17 September 2025 seeking directions for the hearing of the substantive CLL UK Claim. Subject to the outcome of the stay application, the parties have agreed those directions and therefore I will only deal with the stay application in this judgment. The stay is opposed by the Claimant, Mr Dekel. The Fourth to Sixth Defendants are represented before me by Mr Greenhill KC (Fourth) and Mr Westwood KC (Fifth and Sixth). Both Counsel relied upon Mr Woods’ submissions on behalf of the Second and Third Defendants in support of the stay. They made no separate submissions beyond confirming that they support the stay application. CPR – application for a stay – legal principles

3. There was agreement in relation to the relevant principles applicable to an application for a stay. The overriding objective must be given effect to when the power to stay is used, as in every exercise of a power by the Court. The court needs to ensure that cases are dealt with justly and at proportionate cost. In particular, I was referred to CPR 1.1 (2):- a. “(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence; b. (b) saving expense; c. (c) dealing with the case in ways which are proportionate— (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; d. (d) ensuring that it is dealt with expeditiously and fairly; e. (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; f. (f) promoting or using alternative dispute resolution; g. (g) enforcing compliance with rules, practice directions and orders.”

4. Section 49(2) of the Senior Courts Act 1981 states that the Court shall so exercise its jurisdiction in every cause or matter before it as to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of legal proceedings with respect to any of those matters is avoided.

5. The power to stay the whole or part of any proceedings either generally or until a specified event or date is listed as one of the general powers of case management pursuant to CPR 3.1(2)(g). That includes a temporary stay. Background facts

6. The claims arise from a UK based property development project with the site being owned by CLL UK. Mr Dekel invested in the project in exchange for participating shares in CLL BVI. Mr Dekel alleges that the Second and Third Defendants breached certain directors’ duties owed by them to CLL UK concerning the project. Those grounds include CLL UK’s entry into certain loans with the Fifth Defendant and the Sixth Defendant. Mr Dekel’s case includes claims against the Fourth, Fifth and Sixth Defendants on the grounds of dishonestly assisting in the breaches of duty and/or knowingly receiving property which belonged to CLL UK. Mr Dekel’s claim includes a challenge to the entry into a management agreement by CLL UK, with GMG Real Estate Limited which later became a wholly owned subsidiary of RE Capital (Switzerland) SA (the Fourth Defendant) effectively replacing GMG Real Estate Limited as project manager.

7. From consideration of the particulars of claim filed in both the CLL UK Claim and the CLL BVI Claim, the only two significant differences are that the BVI Claim is governed by BVI law and that the CLL BVI claim had two additional defendants, being Control Services Corporation (Control) and Mr Christopher Stuart MacKenzie. The allegations made against these additional defendants mirror those made against the Second and Third Defendants in the CLL UK Claim.

8. The CLL UK Claim was issued on 16 September 2024 and the first stage permission application was issued on 19 September 2024. On 15 May 2025 Mr Justice Fancourt determined on paper that the application should proceed to an inter partes hearing, being the second stage permission hearing. The proposed directions which have been agreed between the parties relate to the second stage permission hearing. The parties before me accept that the second stage permission hearing will be heavily contested. Mr Woods submits that the second stage permission hearing for the CLL UK Claim will be 4 days with an additional 2 days of judicial pre reading. Mr Woolgar on behalf of the Claimant submits that the time estimate is less, being 2 days with additional judicial pre reading time of one day. I am not certain that either party included judgment time, but I would anticipate judgment would be reserved.

9. On 16 September 2024, Mr Dekel also issued in the BVI High Court an application seeking permission for him to issue the CLL BVI Claim in England and Wales. On 10 March 2025, Mr Justice Mithani refused leave. On 10 June 2025, the BVI Court refused the application to revoke the leave order (refusing permission). Leave to appeal was granted in respect of both the leave and the revocation order. These are the appeals currently awaiting a hearing before the Eastern Caribbean Court of Appeal (hereinafter referred to simply as the Court of Appeal).

10. On 23 April 2025, the CLL BVI Claim was issued in England and Wales. According to Mr Dekel this was done on a protective basis due to limitation concerns. On 28 July 2025, on the application of Mr Dekel, ICC Judge Greenwood granted Mr Dekel’s application to stay the CLL BVI Claim pending final determination of the BVI Appeals and any cross appeals in response to the BVI Appeals. There was no opposition from the defendants to this proposed stay which was granted. The current stay application before me seeks effectively to stay the CLL UK Claim in the same terms as the CLL BVI Claim in this jurisdiction has been stayed, that is pending determination of the BVI Appeals and any cross appeals in response to the BVI Appeals.

11. According to the evidence before me, there is currently no date or range of dates when the BVI Appeals will be heard by the Court of Appeal. The appeal hearing could come before the Court of Appeal in its February 2026 session or its June 2026 session, or later. Whilst Mr Gerbi’s witness statement has set out his understanding of the listing possibilities, the reality is that, before me, it is uncertain as to when the appeals will be heard. It is entirely a matter for the Court of Appeal and will depend upon what other cases are due to be heard in each session. Accordingly, the position is that the appeal has no definite date for its hearing, or any certainty as to when the judgment would be handed down after the hearing takes place.

12. If the stay is not granted, then the CLL UK Claim will proceed to a hearing of second stage permission. At some stage thereafter, if the BVI Appeals are successful, there will need to be a hearing of the second stage permission application in relation to CLL BVI Claim. Thereafter, either one case will await the other for a consolidated/combined trial, or potentially be listed for separate trials. If the stay is granted, then the second stage permission hearing will effectively await the outcome of the BVI Appeals so if Mr Dekel is successful, there will be one second stage permission hearing in relation to both claims. If Mr Dekel fails in the BVI Appeals, then the second stage permission hearing will proceed in relation to the CLL UK Claim only. The opposing arguments

13. The Second and Third Defendants (and the other Defendants) submit that the CLL UK Claim should be stayed on the same terms as the CLL BVI Claim. If the Court of Appeal grants permission to Mr Dekel, then the CLL BVI Claim can be consolidated with the CLL UK Claim and the second stage permission hearings can be dealt with at the same hearing. Thereafter, if successful, the claims can be consolidated and the trials heard together.

14. In considering the factors set out at CPR 3.1, Mr Woods relies upon the following:- (a) it is contrary to the overriding objective and good case management to have two separate and substantial hearings in extremely similar cases on the two derivative claims. The defendants in the CLL UK Claim would effectively have to deal with the second stage twice; (b) The court would have to accommodate a 5-6 days hearing of the CLL UK Claim and then a further hearing of 3 days in relation to a separate second stage permission hearing. This is not an appropriate share of the court’s resources and increases costs of all the parties which is unnecessary and could be avoided; (c) If the court does not accede to the stay now, and the two cases proceed to trial separately, at some stage there will be a stay in order to allow the CLL BVI Claim to ‘catch up’ rather than having two trials listed at different times. It is no part of Mr Dekel’s case that the CLL UK Claim should proceed to trial before the CLL BVI Claim. (d) The approach of Mr Dekel in proceeding with the CLL UK Claim to the second stage permission hearing will prejudice the two additional defendants, Control and Mr McKenzie. Mr Woods submits that they would not be parties to the second stage permission hearing on the CLL UK Claim and would be required to deal with the CLL BVI second stage permission hearing when findings have already been made, very much to their detriment and contrary to their interests as parties. He submits that Mr Dekel would inevitably seek to rely on findings made in the second stage permission hearing of the CLL UK Claim in the second stage permission hearing of the CLL BVI Claim.

15. Mr Woods submits the stay would have significant costs savings and result in the saving of court resources by having only one second stage permission hearing rather than two where the facts relied upon in both cases are essentially the same. If Mr Dekel is not given permission to proceed with the CLL BVI claim, then the second stage of the permission hearing in relation to CLL UK claim will proceed without the risk of the same matters being litigated twice. He submits that no prejudice of substance has been identified by Mr Dekel beyond delay. He submits that the delay is a by-product of Mr Dekel choosing to bring multiple proceedings in different jurisdictions.

16. He refers to Athena Capital Fund SICAV-FIS S.C.A v Secretariat of State for the Holy See [2021] EWHC 3166 (Comm ), as providing a useful summary:- “48.The court has power to stay proceedings “where it thinks fit to do so”. This is part of its inherent jurisdiction, recognised by section 49(3) of the Senior Courts Act 1981 . The statute imposes no other express requirement which must be satisfied. This is a wide discretion. The test is simply what is required by the interests of justice in the particular case. 49.Such a stay may be permanent or temporary and may be imposed in a very wide variety of circumstances. Obvious examples include that proceedings may be stayed in order to await the decision of an appellate court in another case; or until a party complies with an order to provide security for costs; or to enable mediation to take place. Cases which speak of “rare and compelling circumstances” (or similar phrases) being necessary have nothing to do with these kinds of commonplace example. They have generally been concerned with stays which have been imposed in order to allow actions in other jurisdictions to proceed, the usual assumption being that the outcome of the foreign proceedings will or may render the proceedings here unnecessary.”

17. The solicitors, Mourant Ozannes, acting for Control and Mr McKenzie, have written to Mr Dekel’s solicitors expressing their support for the stay application, stating the following, namely that those parties:- “…reserve all rights, including (without limitation) the right to advance a case later in England that any determinative stage 2 hearings in England in the CLL UK Claim, preceding any similar hearings in the CLL BVI Claim, have fundamentally compromised their right to a fair hearing of the same matters at those subsequent hearings in the CLL BVI Claim;” and “… support the application for a stay of the CLL UK Claim, so that if [Mr Dekel] succeeds on his CLL BVI Appeal, stage 2 permission hearings of the CLL UK and BVI Claims may be heard together in England, in a way that is procedurally fair and non-prejudicial to our clients, and without wasting resources on future process arguments about the unnecessary infringement of our clients' fundamental right to a fair hearing.”

18. On behalf of Mr Dekel, Mr Woolgar relies heavily on the prejudice to Mr Dekel of the delay in progressing his CLL UK Claim. He submits that Mr Dekel has waited 14 months to reach this stage already on the CLL UK Claim. He submits that if the case is stayed, there will be a lengthy delay before the second stage of the CLL UK Claim can be heard, a delay he calculates of 18 months. He also relies on what he submits is the considerable delay occasioned by the Defendants’ conduct such that the second stage hearing will not be heard until June 2026 at its earliest.

19. He submits that complaints made by the Defendants as to costs are overblown and that essentially all the Defendants could have been represented by one set of lawyers. It is perfectly reasonable for Mr Dekel to seek permission to sue on behalf of both the parent company, CLL BVI and its subsidiary, CLL UK, because any alternative course would have left him open to arguments that the loss had been suffered by a different entity. The application for permission from the BVI was required because it is treated pursuant to the Business Companies Act 2004, as a substantive requirement.

20. When asked by me, Mr Woolgar did accept that but for the BVI Appeals, Mr Dekel accepted that the CLL UK Claim and the CLL BVI Claim would have been heard together, including the second stage permission hearings as well as the trials itself. However, he submitted that due to the uncertainty relating to the appeal hearing date, the overriding interest favoured Mr Dekel so as to enable him to have the second stage permission hearing heard as soon as possible rather than having those proceedings stayed. Otherwise, Mr Dekel would be prejudiced by the length of the delay in waiting to progress his CLL UK Claim and the second stage permission hearing. Mr Dekel is not to be blamed for the delay in the hearing and determination of the BVI Appeals. The stay being sought, if granted, may last for a considerable period of time, between 13 and 19 months according to Mr Woolgar. During this time, Mr Dekel suffers prejudice of not being allowed to continue the CLL UK Claim. He accepts that even if the second stage permission hearing is not stayed and permission is granted, the two claims may well in any event end up being consolidated and tried at the same time. That would again depend upon when the BVI Appeals are heard and the outcome is known.

21. Mr Woolgar submits that there is a real advantage in relation to ADR to have the second stage permission hearing heard and not stayed. A decision in favour of Mr Dekel may well then encourage ADR which he submits is unlikely without the hearing proceeding.

22. If the BVI Appeals fail, the stay being sought would have delayed the hearing of the second stage permission hearing for no purpose. It would also delay the eventual trial, if the second stage permission hearing is successful. If the BVI Appeals succeed, then it may be that the eventual trial of the two claims has been delayed. Both claims can proceed, but this is uncertain at this stage.

23. He accepted that if the second stage of CLL UK Claim went ahead and the stay was refused, Control and Mr McKenzie would not be bound by the decision made at that hearing. He submitted that refusal of the stay would not affect the position of the additional defendants as asserted by the defendants. He accepted that as Control and Mr MacKenzie were not parties, findings of facts and findings of mixed facts and law would not necessarily bind them. He submitted that accordingly, there was really no concern as raised by Mourant’s in their letter.

24. He disputed that the two second permission hearings would be as long as Mr Woods asserted. In his view, the second stage permission hearing time of the CLL BVI claim to be heard separately and after the CLL UK Claim second stage permission hearing would be substantially less, maybe only one day of court time and half a day judicial pre reading. He submits that the defendants have effectively exaggerated the time which would be taken up if the CLL BVI Claim is heard separately after the CLL UK Claim. He submits that the Second and Third Defendants would have almost nothing to say at the CLL BVI Claim hearing and would be bound by what occurred in the CLL UK Claim second stage permission hearing. He also submits that considering the arguments which could be open to Control and Mr McKenzie and their actual roles in the CLL BVI parent company, it is unlikely that the second stage permission hearing would really occupy much time heard on its own or even need to deal with points of real substance. This in any event needs to be set against the prejudice to Mr Dekel in the delay identified.

25. There is no prejudice to the Second and Third Defendants by having the second stage permission hearing proceed now. He rejects that it would cause unnecessary costs to be incurred by them and also rejects that there would be an issue with the court’s resources. This is because Mr Woolgar does not accept that there would be significant time necessary for the second stage permission hearing in CLL BVI Claim once the second stage CLL UK Claim hearing has taken place. He submits that essentially what the defendants are seeking to do is to delay as long as possible the hearings in these proceedings. Discussion

26. In the evidence filed in support of their positions on this application, both parties blamed the other in terms of conduct and language used. In my judgment, those issues are really not helpful or necessary to deal with when considering whether to grant a stay. The delay relied upon by Mr Dekel which he asserts causes him prejudice is the delay which would arise if the stay is granted rather than reliance upon any delay which he blames upon the defendants. Cases simply take time to come before the courts. I do not accept that period of delays of any great significance can be blamed on one or other of the parties. The delays which can arise here relate to the courts’ resources and ability to hear cases and hearings therein. The same can be said in relation to the delays and uncertainty arising in relation to the Court of Appeal hearings in the BVI. The delays are due to court resources and having a busy court timetable. None of these issues, in my judgment, on the facts of this case, merit being considered on their own as being prejudicial without some other factors being identified.

27. There is no dispute that the CLL UK Claim and CLL BVI Claim relate to the same facts and that, but for the current BVI Appeals, these claims would be heard together including for the second stage permission hearings. Despite the difference between the parties as to the length of the second stage permission hearings, the parties agree that it will be a substantial hearing over a number of days. The issue for me is whether on the facts of this case, a stay is appropriate.

28. Mr Dekel has brought the claims in this jurisdiction and also in the BVI. He asserts that his claim in the BVI is necessary so as to enable him to pursue both claims before this court and to ensure that at trial, he does not face arguments relating to causation and loss which relate to there being no claim issued against the parent company. Unlike some of the cases which Mr Woolgar set out in his skeleton argument, this is not a case where there are proceedings in two jurisdictions and the stay is being sought to enable the determination of the foreign proceedings, which will have the effect of determining the outcome of the English proceedings. The BVI proceedings are a necessary step for Mr Dekel to be able to pursue both the CLL UK Claim and the CLL BVI Claim in this jurisdiction. So the issue is whether a stay should be granted to delay the hearing of the CLL UK Claim to await the outcome of the BVI Appeals. The Appeals hearing relates to the dismissal of Mr Dekel’s claim seeking permission to bring the CLL BVI Claim. Mr Dekel’s purpose in appealing is to enable him to have both claims heard. That is his aim.

29. I accept that there is uncertainty as to when the BVI Appeals will be heard and judgment handed down. I also accept that Mr Dekel considers that this delay prejudices him, but I do not consider his position is necessarily determinative of the matter. If a stay is granted, his prejudice is the delay in having his CLL UK Claim determined at the second stage permission hearing and thereafter the eventual trial if he is successful. Mr Dekel raises no specific prejudice relating to particular witnesses or other factors which are caused by the delay. On Mr Dekel’s case, the delay is significant but this in itself does not mean that it will be difficult for him to have a fair hearing if the stay is granted and there is delay. That is not what he has submitted before me. In my judgment, on the facts of this case, Mr Dekel’s CLL UK Claim cannot be viewed in isolation from his CLL BVI Claim and his BVI Appeals from the first instance decisions. Having considered the pleadings in both cases, this is exactly the type of case where both claims should be heard together.

30. In my judgment, there is a clear effect on court resources by refusing the stay. I do not accept that the eventual second stage hearing of the CLL BVI Claim would be as short as Mr Woolgar asserts. As I have set out above, Control and Mr McKenzie will be entitled to deal with mixed questions of fact and law as well as questions of fact. I consider it is likely that the second stage permission hearing in relation to CLL BVI Claim will be heavily contested and this will include, in my judgment, a likelihood of arguments as to whether a particular finding was one of mixed fact and law or pure law. I therefore do not accept that the second stage permission hearing for CLL BVI Claim would be in reality less than at least 3-4 days with additional reading time required. Mr Woolgar may well be correct that ultimately the current defendants and Control and Mr McKenzie are unlikely to successfully raise many issues, but that is, in my judgment, an assessment which I am unable to rely upon. In my judgment, this is the type of case where points will be raised occupying considerable court time.

31. Moreover, in my judgment, there is a further issue to be taken into account. Allowing these two Claims based on the same facts to be dealt with separately places the Judge hearing the second stage permission hearing in the CLL BVI Claim in a position where he will have to consider issues relating to what are issues of fact, what are issues of mixed fact and law, as well as consider carefully the findings made in the CLL UK Claim hearing. The consideration of all these factors, occupying court time and increasing the deliberations of the Judge can be avoided by granting the stay.

32. CPR sets out expressly in rule 1.1(2) (g) the issue of allotting to a case an appropriate share of the court’s resources when taking into account the need to allot resources to other cases. In my judgment, the refusal of a stay will lead to a disproportionate share of the court’s resources being allocated to these claims without taking into account the need to allot resources to other cases. This is particularly the case because it is accepted that but for the BVI Appeals, these two claims would be heard together and that there would be one second stage permission hearing. There would also be one trial for both claims.

33. There is the further cost being incurred by having separate second stage permission hearings. I do not accept that such costs would necessarily be fairly minimal and that the defendants would have no reason to participate because they are bound by the CLL UK Claim outcome. I do accept that these additional costs may not be as significant as tho se for the CLL UK Claim in the event that it was heard separately but they can still be substantial. There is therefore a waste of costs.

34. I have taken the delay factor relied upon by Mr Dekel into consideration alongside the others and the prejudice he asserts the delay causes by not allowing him to proceed with the CLL UK Claim now. I have weighed the uncertainty of when the second stage permission hearing on the CLL UK Claim will be heard as against the allotment of court resources. If the BVI Appeals fail, the stay would have caused a delay in the hearing of the CLL UK Claim. That hearing may itself be further delayed if steps are taken thereafter to seek to appeal from the decision on the BVI Appeals. However if the BVI Appeals succeed and there has been no stay, this case creates the unnecessary burden on court resources by being before the court on two separate occasions for the second stage permission hearings. In a case where the facts are essentially the same and there is the added complication of the additional defendants as I have described above, this weighs heavily in determining whether to grant the stay.

35. All claimants seek to have their cases dealt with as quickly as possible. On the facts of this case, Mr Dekel has chosen to bring two cases based on the similar facts. His reasons are understandable, but that does not detract from the fact that there are two cases he has brought based on essentially the same facts which should be heard together. The BVI Appeals delay and uncertainty are factors which arise as part of the fact that there are two cases being brought. This is of course not to blame Mr Dekel for the delay, but in my judgment, the delay caused by the uncertainty and outcome of the appeals are factors very much related to two claims having been issued.

36. Mr Woolgar relies upon the issue of ADR and submits that ADR would be facilitated if there were a decision in favour of Mr Dekel in the CLL UK Claim. This is disputed by the defendants. In my judgment, I am not persuaded that Mr Woolgar is correct. In so far as Mr Dekel succeeds in a separate CLL UK Claim second stage permission hearing, the defendants may well seek permission to appeal that judgment. Alternatively, if Mr Dekel fails, then he may also seek to appeal that refusal. ADR should be in the minds of all parties and I cannot see there is merit in this ADR issue relied upon by Mr Woolgar.

37. I will grant the stay sought. I consider despite the delay and non specific prejudice, there is a real issue in relation to court resources and creating a more complex hearing which will be unnecessary if the two second stage permission hearings are heard at the same time. There is also the issue of wasted costs but this is not in itself a determinative factor but I accept additional costs is a prejudice to the defendants. As to the position of Control and Mr McKenzie, if no stay is granted their position at the second stage permission hearing is unnecessarily complex and leading, in my judgment, to the real risk of additional issues having to be determined by the court in relation to whether issues were of facts or mixed facts and law.

38. I should add that in reaching this decision, I did consider whether some other order would be appropriate, namely by granting a stay limited to a particular time. However, ultimately that seems to be somewhat unsatisfactory in a case where the timing of the BVI Appeals is so uncertain. Whether the delay is as lengthy as Mr Woolgar calculates (or capable of being that lengthy) and whether the delay is of a much shorter period, the issues relating to the court’s resources remain relevant. Mr Woolgar pressed upon me by way of an alternative submission, that directions could be given at this stage for exchange of evidence for the purposes of CLL UK Claim. This was opposed. I am not sure whether the exchange of evidence would be of any benefit at this stage. Additionally, it appears to me that serving evidence for one joint hearing is more appropriate, in so far as Mr Dekel succeeds on the BVI Appeals. I direct a stay on the terms sought by the Second and Third Defendants.