R v Andrew John Camilleri (2018) – An IVA Proposal and War of Attrition

On Monday 29th January 2018, following a private prosecution, Andrew John Camilleri was unanimously convicted by a jury at Manchester Crown Court of making false representations in an Individual Voluntary Arrangement (“IVA”)[1] proposal contrary to section 262A of the Insolvency Act 1986. The prosecution was brought by one of Camilleri’s many creditors.

Summary of Case

An Individual Voluntary Arrangement (IVA) is an alternative to bankruptcy and a formal process requiring the debtor to tell the truth to his/her creditors. It was the prosecution case that, between 18th February and 17th March 2011, Andrew Camilleri made a series of false representations in his IVA proposal, which he later presented to his creditors for approval. If the IVA Proposal had been approved by his creditors, it would have wiped out all of Camilleri’s debts (in excess of £9 million) and given him a clean slate whilst leaving his creditors with a pittance.

In 2007/08, Mr Camilleri persuaded various creditors to part with their money to finance his developing property empire. He asked for bridging loans on a short-term basis, (for a matter of weeks), and offered his creditors security against the properties he was buying. Instead of repaying the money and interest under the bridging loans, Camilleri convinced his creditor to instead release further funds, and roll up the interest they were due, for Camilleri to buy more properties. One witness described how Camilleri would “say, literally, whatever he has to say in order to persuade anyone to part with their money and produce questionable documentation/substantiation to achieve this objective.” Camilleri put new deals to his creditor on a constant basis, until one day, he was to tell them that, in fact, there was no security against the properties for their loans, which had all been mortgaged up to the hilt in debt.

Camilleri’s creditors then pursued bankruptcy proceedings, but in order to stave off the threat of bankruptcy, on 18th February 2011 Mr Camilleri prepared an IVA proposal, pretending to set out his total assets and debts, and presented it to his creditors for their approval on the 17th March 2011. Camilleri stated in his IVA proposal that he had no assets of any value for the benefit of his creditors, but that his cousin would lend him £100,000 that could be used to pay towards his debts.

Mr Camilleri stated that his total unsecured creditors were owed c.£5.7 million, and so they would get 1.29 pence in the pound. In practice, accepting this offer would mean that one of his creditors would get £29,025 to cancel the debt of £2.25 million that Camilleri owed.

In fact, Camilleri had not declared the totality of his debts in the IVA proposal, which were substantially more than c.£5.7 million. For example, Camilleri declared one of his unsecured creditors, Rooftop Mortgages, as being owed only £160,000, when the accurate figure was £100,000 more, at £269,519.44. Had Mr Camilleri’s creditors accepted the IVA proposal, they would not have even seen the 1.29 pence that Camilleri had promised them.

In respect of his assets, Camilleri declared in his IVA Proposal that he owned 100% of the shares in Fresh Start Living Limited that had nominal value. In fact, Mr Camilleri was not the registered owner of the shares, and it was the prosecution’s position that the company was plainly not of “nominal value”. The prosecution produced evidence showing that Fresh Start Living had over £1.125m in one of its bank accounts only months after Camilleri had presented his IVA Proposal. Evidence also showed that during the year 2011, Fresh Start Living’s fixed asset register recorded it as owning a Maserati Quattroporte, an Aston Martin DB9, an Aston Martin V8, an Audi S8, and a number of Mercedes vehicles and vans.

Camilleri declined to call any evidence and left the jurisdiction for Switzerland on the last day of trial, before the jury returned their verdict. On Wednesday 31st January 2018, His Honour Judge Field QC sentenced Mr Camilleri in his absence to a custodial sentence of 12 months, suspended for 12 months, and a £10,000 fine.

 

Comment

Every possible obstacle was placed in the way of this private prosecution. The case commenced in April 2015, and Camilleri did all that he could to subvert and derail the prosecution to prevent him from answering for the offence of which he was charged. In dealing with the question of costs, the trial judge agreed with the prosecution that it was a war of attrition.

Mr Alan Richard Blinkhorn brought this private prosecution and instructed Andrew Marshall of Edmonds Marshall McMahon, specialist solicitors in private prosecutions.  Mr Blinkhorn commented: ‘I have only ever sought to ensure Camilleri was brought to account properly for his actions; that has finally occurred. The IVA proposal was a sham and I am grateful to the courts we have had to pass through for taking the trouble to understand the issues and dealing with them properly.’

 

Edmonds Marshall McMahon statement:

Andrew Marshall, Partner at Edmonds Marshall McMahon comments: “Mr Blinkhorn came to Edmonds Marshall McMahon due to our expertise in conducting private prosecutions. This was an elaborate deception that Andrew Camilleri maintained in order to mislead his creditors to give himself a clean slate, leaving his creditors with a pittance.

This has been a challenging and time-consuming prosecution. It has been an incredibly difficult journey for Mr Blinkhorn, who has spent years trying to get the justice he and Mr Camilleri’s other creditors deserves. He faced constant challenges from a man who may have considered he was untouchable.

 With the number of individuals in the UK declaring insolvency increasing for the second year running to levels not seen since the post-2008 recession and more and more people turning to IVA Proposals to avoid bankruptcy, they are advised to approach the process honestly and transparently.

 

Contact details

Andrew Marshall and Ashley Fairbrother
Edmonds Marshall McMahon
35 Cock Lane, London EC1A 9BW

Office: 0207 583 8392 EmailAndrewMarshall@emmlegal.com   Website: www.emmlegal.com

 

[1] An Individual voluntary arrangement (also called an individual voluntary arrangement or IVA) is a formal and legally binding agreement between somebody who owes money (a debtor), and the people to whom he owes money (his creditors) to pay back his debts over a period of time. Before the agreement can be reached a formal written proposal is prepared by the debtor with the assistance of an insolvency practitioner. The written proposal is then put before the creditors for their approval: they will vote on whether to accept it. If enough creditors vote for the proposal, the proposal is accepted and this is reported to the court.

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