Kuwait Airways Corporation v Iraq Airways Co & Anor [2010] EWCA Civ 740

Case No A3/2010/0969[2010] EWCA Civ 740
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
COMMERCIAL COURT
MR JUSTICE ANDREW SMITH
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 27th April 2010
Before
LORD JUSTICE RIXLORD JUSTICE WILSONSIR DAVID KEENE
Between
KUWAIT AIRWAYS CORPORATIONAppellantIRAQ AIRWAYS CO AND ANOTHERRespondents
( DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court )
Mr David Scorey (instructed by Fasken Martineau Solicitors LLP) appeared for Appellant.The appeal was brought without notice to the Respondent s.
Judgment
[1]This is an appeal without notice, or what used to be called an ex parte appeal. We have been very much assisted by the written and oral submissions of Mr David Scorey on behalf of Kuwait Airways Corporation ("KAC"), but it is in the nature of this beast that we have had no submissions from the respondent, who, for present purposes, is essentially Captain Kifah, who is the Director General of Iraqi Airways Company ("IAC"), which is the other respondent, and indeed, in a sense, the first and primary respondent in these proceedings.[2]These proceedings arise out of KAC's without notice application to the judge last Friday, 23 April 2010, the judge being Andrew Smith J in the Commercial Court, for a worldwide freezing order over the assets of IAC and for further ancillary relief in the form of disclosure orders from IAC and in particular by its Director General, Captain Kifah. To police that disclosure order, further orders were requested: described as a restraint order against Captain Kifah to prevent him leaving the jurisdiction until he had sworn an affidavit of disclosure of assets; and a passport order requiring him to hand over his passport in order to police the restraint order; and a Tipstaff order requiring the Tipstaff to attend upon Captain Kifah to obtain his passport and thus to police the restraint and passport orders. That Tipstaff order contains within it powers of arrest and, indeed, of entry and seizure, in support of the obtaining of the passport of Captain Kifah.[3]In his first and major affidavit on behalf of KAC, Mr Chris Gooding, a solicitor and partner in KAC's firm of solicitors, Fasken Martineau LLP, describes IAC as "a defendant which has perjured and forged its way through some 15 years of litigation". In his affidavit he gives some chapters and some verses in support of that claim. He has described how two perjury actions -- the so-called Perjury 1 action and the so-called Perjury 2 action, 2000 folio number 1137 and 2003 folio number 223 respectively -- have found that IAC have obtained judgments or influenced litigation by means of perjury, fraud and forgery. In Mr Gooding's affidavit David Steel J, at paragraph 101 of the ‘Perjury 2 Action’, remarked as follows:
"In my judgment, the evidence is overwhelming that IAC has throughout this litigation pursued a deliberate and sophisticated policy of non-disclosure, suppression and concealment of relevant documents, particularly those prejudicial to its legal position, a policy that has been revealed not to stop short of forging documents to make good otherwise damaging gaps."
[4]Ultimately this whole series of litigation arises, as is probably well known, out of the invasion in 1991 of Kuwait by President Sadam's Iraq and, immediately upon that invasion, the seizure and theft of the whole of KAC's civil aviation fleet. KAC's planes were almost immediately flown out of Kuwait back to Iraq, and its valuable assembly of spares for that fleet was also promptly removed to Iraq. Many or most of the stolen planes that remained in Iraq (some, as I recollect, were harboured in Jordan or elsewhere) were unfortunately destroyed on the ground during the allied bombing of Iraq in the first Iraq war.[5]Freezing orders have been made against IAC in the past, albeit they were overtaken in 2001, as I understand it, by an undertaking, and then in 2003 by a United Nations Security Council resolution which required all outstanding Iraqi state assets to be frozen as a matter of international law pursuant to that resolution, binding on all members of the United Nations, and provided also for an Iraq development fund.[6]IAC has paid some of the judgment debts accumulated in this whole history of litigation, but certainly by no means all, or even probably much. There is outstanding, on the evidence before us, a judgment debt or debts under various judgments amounting to (with interest) some $1.2 billion and rising. For many years there has been little or indeed no prospect of KAC executing the judgments in its favour to recover that debt, and it has sought to find assets without avail. More recently there has been, and is still ongoing, an important flurry of activity in Canada, where it appears some new planes have been built on order for IAC, possibly in the name of the state of Iraq itself, but the outcome of that litigation remains to be seen.[7]The applications in issue on this appeal arise out of the resumption, which has been in the newspapers over the last weekend or so, of flights between Baghdad and London. When I say London I think I mean Gatwick; and these flights, I think, are via Sweden. Apparently there are plans for at least weekly flights. News of this resumption of service has excited KAC again into action. On the evidence before us KAC accepts, I think, that the airplane or airplanes to be used in this service are themselves leased and are unlikely to represent, in themselves, an asset of IAC. They are probably leased from a major Swedish leasing company. However, it is suggested that these flights could not be arranged and resumed without IAC making substantial deposits at Gatwick or elsewhere in support of the service and the expenses to be incurred in respect of it, and it is also suggested, quite naturally, that this service may create fresh income streams.[8]If IAC was a private company no doubt it would have given rise by now to IAC (21st century) or (2010) Limited or suchlike; but IAC has been, and presumably still is, a state-owned corporation, and therefore something of a different animal.[9]The matter came before the judge with commendable speed and efficiency last Friday morning. The judge sat between 9.30 and 12.00 to hear Mr Scorey make his applications; he then adjourned and gave judgment at 2.00. For present purposes his judgment, setting the background which I have sought to set myself and ruling on the need and desirability under Section 37 of what is now called the Senior Courts Act 1981, was, so far as the freezing order and disclosure orders are concerned, not in issue. The judge described as more difficult, or I think what he described as the most difficult part, whether he should make further orders against Captain Kifah, and indeed five other named individuals who were then also in the frame, so to speak, for such orders. He concluded that the language of Section 37 was wide enough to encompass ancillary orders of the kind requested. He referred in this connection to Bekhor & Co Ltd v Bilton[1981] 1 QB 923 and to Bayer AG v Winter [1986] 1 WLR 497. He accepted, however, that although a disclosure order was in Bayer v Winter supported by a restraint order and a passport order, he recognised that the analogous orders sought in this case were what he described as unprecedented, and that their unprecedented nature meant that he should be "cautious and proportionate and do no more than necessary to protect the legitimate interests of the claimant" (I cite from the helpful note prepared of his judgment by counsel, Mr Scorey).[10]He put to himself the following important considerations about the exercise of the Bayer v Winter jurisdiction. First, that it was important to recognise that Captain Kifah (I interpose to say that he refused any orders in respect of any of the other individuals) is simply acting in his capacity as a witness. He cited Phipson on Evidence at paragraphs 8-32 which acknowledges the possibility of a witness summons against persons temporarily within the jurisdiction, but which also emphasises the limitations upon that possibility. In effect, something like a witness summons, or an application under CPR Part 71 for disclosure by the officer of a judgment debtor company for disclosure of assets in aid of execution, does not lie against persons outside the jurisdiction. That fact puts limits, explained in Phipson, upon the extent to which a summons against a non-resident temporarily within the jurisdiction may be subject to, where the opportunity afforded by such temporary presence might give rise to possible trespass upon exorbitant activity.[11]Secondly, the judge directed himself that he should be careful not to circumvent the restrictions of CPR Part 71, to which I have already referred. The court should, he said, be slow to put a party in a better position than they would be under Part 71.[12]Thirdly, he directed himself that the court should not exercise unusual or exorbitant jurisdictions unless it was necessary, nor should it make orders that were empty of content because unlikely to be complied with.[13]Ultimately, against that background, he considered that he should make an order, a restraint and passport order, because otherwise the court's order for disclosure might be in vain. The judge had in mind that, as Director General of IAC, Captain Kifah was an officer within the meaning of CPR Part 71 against whom notice could be issued within the jurisdiction. He considered that he was likely to have at his disposal the necessary information as to IAC's assets.[14]He accepted an undertaking from KAC that Captain Kifah should have accommodation and living support if detained in this jurisdiction, and so he made the orders requested, including a Tipstaff order, albeit he did not have before him at the time of judgment a draft of the Tipstaff order. The disclosure order requires Captain Kifah to swear and serve a far-reaching affidavit of disclosure of assets within 48 hours of service of the order upon him and then to remain in England for a further three days and to deliver up his passports.[15]There is a separate passport order requiring Captain Kifah to hand over his passports and every identity card and ticket or other document which would enable him to leave England and Wales to the Tipstaff for delivery to IAC's solicitors, and annexed to that order is a notice to Captain Kifah warning him that the Tipstaff has power to arrest any person whom he has reasonable cause to believe has been served and has disobeyed the order. The Tipstaff order gives power to the Tipstaff and directs him to obtain the documents referred to in the passport order, to enter, if necessary by force, and search premises, where he has reasonable cause to believe such documents may be found in order to obtain them, and to arrest any person who he has reasonable cause to believe has been served with the passport order and has disobeyed any part of it:
"Provided that he shall explain to that person the ground for the arrest and shall bring him or her before the court as soon as practicable and in any event no later than the working day immediately following the arrest"
[16]It seems that my Lord, Wilson LJ, as a puisne judge in the Family Division, was himself responsible for drafting the Tipstaff order, because in that division it is by no means uncommon to find it necessary to make orders against mothers or fathers who are disputing the custody of children or threatening to abduct children to foreign lands and whom it is necessary to take strong powers against in order to prevent the dispute before the family court being rendered entirely otiose and futile. I understand from my Lord that such orders are regularly made in that division.[17]It remains true, nevertheless, that in a commercial setting the orders that the judge made for restraint from leaving this country -- and, in support of that, for surrender of passports and other documents and for the use of the Tipstaff in order to lend the sanction of force and, if necessary, arrest to those orders -- are unprecedented in this commercial context against a non-party. Bayer v Winter, to which I have already referred, is an example (it has to be said a rare example) of the use of this jurisdiction pursuant to Section 37 of the 1981 Act against a party who is resident in this country, but Mr Scorey, for all his diligent researches assisted by those instructing him, has not produced an earlier example of that jurisdiction being used against a non-resident non-party, as in this case.[18]Perhaps it was for considerations such as these that, although making and deciding and ensuring the sealing of the orders last Friday (in particular the Tipstaff order had to be sealed otherwise the Tipstaff was not prepared to act upon it), the judge also directed that Friday that those orders were not to be served -- not to be used, in other words, and not to be put into effect -- without his further order. Mr Scorey accepts that it is not entirely clear why the judge maintained that hold over his orders. In part, it may be that the arrival of the expected plane to Gatwick was uncertain in the light of the Icelandic ash cloud which we know all about; but in part it may be that the judge wanted to consider, at greater leisure than he had had the opportunity to do in the heat of the application that Friday, what the consequences of his orders were.[19]That Friday night he spoke on the telephone to Mr Scorey and told Mr Scorey that he had some concern over the Tipstaff order, in particular over the extent of the powers of entry and seizure. The judge and Mr Scorey spoke again on the telephone on Saturday morning, when the judge repeated his concerns. The judge told Mr Scorey that he wanted Mr Scorey specifically to address those concerns when, as they arranged, there would be a further telephone hearing on Sunday to activate the orders. On the Sunday the judge and Mr Scorey spoke again. Mr Scorey produced a further detailed skeleton which he emailed to the judge. They spoke at about 6pm. The judge emailed to Mr Scorey in response at about 7.45pm his reasons for deciding on that occasion that, as an exercise of his discretion, but not, as he made clear, for want of jurisdiction, he ultimately had decided to withhold his approval for the restraint, passport and Tipstaff orders. I therefore turn to his written reasons for that second judgment.[20]Having set the background he said at the end of the third paragraph of his second judgment that he had the necessary jurisdiction. He said:
"I have jurisdiction to make them: the question is whether it would be just and convenient and proportionate to do so, bearing in mind (inter alia) IAC's conduct of this litigation and the unsatisfied judgments in favour of KAC."
[21]He then turned to that exercise of his discretion. He referred to the passages in the Tipstaff order which indicated that it allowed for the arrest and detention of Captain Kifah and he expressed his concern that that would occur "without the safeguards that would be in place if KAC had to move for his committal for breach of a court order". He accepted that such orders are sometimes made, for example, where there is a danger of a child being removed from the jurisdiction but he said that in his judgment it was not appropriate to give such wide powers in the present case. He said that he must not lose sight of the fact that, whatever the apparently unmeritorious position of IAC, and despite the fact that Captain Kifah was its Director General, the orders were sought against him "simply because he seems likely to be able to give evidence, and moreover, as far as I am aware, he has not been in breach of any orders made against him personally". The judge then reminded himself of the reasons why he had made those orders in the first place on Friday, namely the practical difficulties that faced KAC if the services of the Tipstaff were not available to them. The judge said that he recognised those difficulties "and the real risk that effect might not be given to the court's orders otherwise". On the other hand he said that he needed to weigh Captain Kifah's right to liberty and the risk to it and the practical implications of what he was being asked to do. He said that he considered that Captain Kifah's rights would be unacceptably jeopardised if he gave directions for the Tipstaff to enforce the restraint and passport orders and that that might lead to an arrest because Captain Kifah did not understand the orders with which he was being served and before he could obtain legal advice about them. He said that that would be highly undesirable in itself and particularly so if Captain Kifah arrived as part of a delegation with Iraqi Government officials. In that connection he cited Mr Gooding's own affidavit evidence that the greeting of Captain Kifah with any order for service upon him could lead to disorder "with attendant political and media scrutiny".[22]That was the basis upon which Mr Gooding in his affidavit had asked for the assistance of the Tipstaff to support KAC's solicitor's service of the documents and request of Captain Kifah for him to deliver up his passport and other relevant documents.[23]In those circumstances the judge in his discretion in effect changed his mind about the appropriateness of the Tipstaff order and upon that basis considered that he ought to withdraw the restraint and passport orders too. Although that part of his reasoning is not explicitly spelt out, I would, as I understand the matter at present, understand the judge as saying in effect that, if on KAC's own evidence the Tipstaff was necessary to maintain order in a difficult situation where he was not willing to make a Tipstaff order, then for the same reasons the passport and restraint orders had to go as well.[24]He seems to have argued backwards from the absence of the Tipstaff to the futility of all but the disclosure order. He maintained the disclosure order, however, without discharging that as well on the basis that it would be futile.[25]It is from the judge's rethink of those matters on Sunday that Mr Scorey brings his appeal and he makes essentially three submissions. First of all he submits that the judge's final decision was at fault for the very reason, or at any rate as evidenced by, the change of mind that was necessary to it. He submits that there was nothing new to justify the revocation of his orders. The judge had always contemplated the use of a Tipstaff. Even though he had not seen the Tipstaff order at the time of his first judgment on Friday afternoon, he had signed it before the end of that day.[26]Moreover, Mr Scorey submitted that the judge had changed his mind without taking proper consideration of the effect which his rescinding of his other orders would have upon the usefulness of the disclosure order which he had maintained.[27]Mr Scorey's second submission was that the judge was wrong to take account of constraints on the jurisdiction for committal for contempt in his second thoughts. The point about a committal for contempt is that it requires the service of a notice of committal upon the respondent to inform him what it is that he had failed to do in what he had been required to do. It allows the respondent to obtain legal advice and to be heard by a judge upon the committal application, and it is only after all that has occurred and the judge has found the respondent to have been in contempt and indeed in contumelious contempt, as I understand the jurisdiction, that he would be liable to arrest. The judge was clearly concerned that those limitations and safeguards of that procedure would not be available to Captain Kifah in the present circumstances. He would be liable to arrest by the Tipstaff immediately upon his arrival in the country if upon being served with the various orders, which amount to numerous pieces of paper, he became enthused or lacked understanding or in the absence of legal advice failed to hand over the necessary documents immediately. The point about a Tipstaff order is that the respondent to it has to comply immediately even in advance of the taking of legal advice.[28]Mr Scorey submits, on the other hand, that all such considerations are by the way because the judge failed to understand that the orders made originally in this case were not like an order for committal to prison for contempt of court, that is to say, in punishment of breach of an order, but in order to encourage compliance with an order. To some extent, in my judgment, that distinction can be made but it overemphasises, in my judgment, the difference between theory and practice.[29]Mr Scorey's third submission was that to the extent that the judge was concerned about the width of the Tipstaff's powers, which the judge says that he had not fully appreciated at the time of making his original order, then those powers could have been varied even to the extent of giving up the Tipstaff's power of arrest and, if necessary, by making special orders providing for translations or the presence of an interpreter and so forth. Mr Scorey submits that the judge did not raise any such matters with him.[30]Mr Scorey in his written submissions and at the beginning of his oral submissions appears to me to have addressed this appeal on the basis that there was some doubt as to the judge's jurisdiction or powers, but, in the light of the judge's express acceptance of the necessary jurisdiction, Mr Scorey accepted that at the end of the day he had to justify this appeal on the grounds of an error in the judge's exercise of his discretion and he accepted that that would be more difficult for him. Nevertheless he submitted that the judge had erred in his Sunday discretion as shown by the fact that it was simply inconsistent with his Friday discretion. Mr Scorey emphasised that without the orders the disclosure order which remained was likely to be futile, that the judge had accepted that and that the judge had therefore accepted, originally at any rate, that the additional restraint, passport and Tipstaff orders were necessary. Mr Scorey submitted essentially as his bottom line that if the judge viewed those orders as necessary then he ought to have made them.[31]In support of that submission he refers to what this court said, as cited in Bayer v Winter[1986] 1 All ER 733, in House of Spring Gardens Ltd v Waite [1985] FSR 173, to what Hobhouse LJ said in In Re B (Child Abduction: Wardship: Power to Detain) [1994] 2 FLR 479 at 488 and to what my Lord Wilson LJ said as Wilson J in B and B Inspection Jurisdiction [1998] 1 WLR 329. Although a restraint and passport order were refused in that case, which concerned an attempt to enforce a payment of costs, nevertheless in his wide ranging judgment my Lord discussed all the circumstances in which ancillary restraint, passport and even Tipstaff orders could be made in support of the judge's orders, see in particular at 333 and 334.[32]In my judgment this is a difficult application with much to be said on both sides of it. It is plainly difficult if only because it is exceptional and unprecedented. The fact that it is an unprecedented application against a non-resident non-party is striking in itself when one considers the wealth of international litigation which proceeds in London and in a way is all the more striking in the light of the familiarity of such orders in the family jurisdiction. Another reason why in my judgment this is a difficult application is because in principle on the one side of the argument there is the very powerful submission that the court should not act in vain and should do whatever is necessary to support its orders to ensure that they are not futile. The cases illustrate that submission. On the other hand there lies the powerful argument that an aspect of the liberty of the respondent is concerned. That aspect may take two forms. If matters proceed in an unfortunate way they may end up in the respondent being arrested, albeit not for the purpose of being detained but for the purpose of being brought before the court at the earliest available opportunity. In the absence of any arrest there is an infringement of the respondent's liberty in his being prevented from leaving the country. That aspect of the liberty of the respondent assumes more serious proportions, or may do in the case of a non-resident who is merely visiting this country for a brief visit, which is the case with Captain Kifah, as distinct from the case of a resident who is here permanently and may have no wish or desire other than for nefarious reasons to leave this jurisdiction in the imminent future.[33]Furthermore one has to recall that Captain Kifah is not the litigant IAC. There are two aspects of that. One is that he is not tarred with the brush which tars IAC in its proceedings. As the judge remarked, he had no evidence that there was anything that Captain Kifah had done which put him in breach of any order or indeed which involved him in conduct by IAC which put IAC in breach of any order.[34]The other aspect is that Captain Kifah, not being the litigant, is not liable for the judgment debt of IAC. All he can do is provide information about its assets. On the other hand it has to be remembered, first, that as Director General of IAC he is by virtue of that position and status as close to being a personification of IAC as it is possible to be, and also that as an officer of IAC he is liable to the execution procedure under CPR 71, at any rate if he is within the jurisdiction. Again one remembers that CPR 71 is not available against respondents outside the jurisdiction, it is essentially a domestic aid to execution.[35]Thirdly, the matter is difficult because, with due respect, this is an extreme case and it is in its claim to be an extreme case that Mr Scorey puts much of his submission that exceptional cases require exceptional, even unprecedented relief. On the one hand, where the misdeeds of the party litigant IAC are concerned, this may well for the reasons which I stressed at the beginning of this judgment be an extreme case, but on the other hand, where Captain Kifah himself is concerned, it is not an extreme case for the reasons which I have already indicated. He is not personally concerned with IAC's misdeeds of perjury, fraud and forgery in the past. He has been Director General, I think, only since 2006 or 2007, as mentioned by Mr Scorey, and he has, albeit against the background of a forceful freezing order, given voluntary depositions in Canada. So this is very far from the kind of case in which party litigants against whom very serious allegations of complicity in theft or other serious civil or even criminal wrongs have been alleged.[36]In my judgment the liberty of the subject is not to be lightly or easily interfered with. ‘The liberty of the subject’ is the standard phrase but certainly the liberty of the non-subject lawfully and peaceably in this country is as precious.[37]So for all these reasons it seems to me that this is a difficult case and it may prove to be a difficult case in which to show that the judge in the latter exercise of his discretion made an error with which this court can and should interfere. Nevertheless, when all these matters are said and done I remind myself that this is still at the stage of one-sided litigation. It is not a final appeal. I also remind myself that one of the difficulties of the structure of this argument is that even before one gets to a hearing between the parties, the dangers and difficulties about which the judge was concerned and of which I have spoken in this judgment could have already resulted in the arrest of Captain Kifah and in any event in his detention within this country, even if at liberty here, when he would wish otherwise to go home to Iraq.[38]For all of that, in my judgment I would nevertheless allow the appeal so that within a very few days the matter can be tested by the results and by inter partes argument.[39]I would hope that now that Captain Kifah is within this country and would be seen by the Tipstaff presumably at his hotel, the matter could be handled in a way which would limit or avoid the difficulties which the judge feared. It would be in any event likely that if the orders served upon Captain Kifah are disputed, the matter will be brought before the judge at the earliest possible opportunity for inter partes argument and if necessary back to this court almost as swiftly, were that necessary.[40]I am concerned that both in his departure from his original exercise of discretion which in the light of the first judgment which I have resumed it is clear that the judge considered carefully, and in the light of the fact that the judge does not appear to have acknowledged that his disclosure order remains unprotected and potentially futile, the judge has erred in principle in his discretion, and therefore in an exceptional case I consider that the relatively limited infringements on Captain Kifah's liberty may be risked. I say risked because there would still be as I anticipate an inter partes argument in which Captain Kifah would be entitled to raise submissions as to why these orders should never have been made.[41]In giving this judgment, albeit it is, and if followed by my Lords, the judgment of the Court of Appeal, I would myself emphasise that I allow the appeal in large part because of the exceptional nature of the IAC litigation, which is quite unlike most commercial litigation (albeit not wholly unprecedented, see Masri itself), and because at this stage of the argument this court only has to be persuaded that there is a good arguable case for the orders and for the judge having erred in his exercise of discretion and does not have to make a definitive decision upon the matters before us. That this court cannot do on a one-sided argument.[42]Therefore, for those reasons, and with some expression of my concern that what happens in an exceptional case may be thought of as providing the basis for a new peril of litigating international disputes in England, I for myself would allow this appeal.[43]There is no doubt -- indeed Mr Scorey concedes -- that the judge was not precluded by law from changing his mind between Friday 23 April and Sunday 25 April. By making the unusual direction on Friday that his orders should not be served without further order, he had reserved to himself the clearest locus poenitentiae even though the orders made on Friday had then been sealed on that same day.[44]The order against Captain Kifah of which on Sunday the judge did not repent was the order that he should, by affidavit, disclose to the best of his ability the nature and extent of the assets of IAC and in particular the financial arrangements entered into it for the purposes of its new London/Baghdad service. I have no reason to doubt the judge's view that, as Director General of IAC and thus ostensibly its officer best placed to explain its financial arrangements, and indeed an officer who would be amenable to the provisions of part 71 of the CPR, the captain was properly made subject to this disclosure order.[45]The structure of the orders made on Friday was that: a) in order to make the disclosure order against the captain effective he should be restrained from leaving England and Wales until service of the affidavit and indeed, in case the applicant wished to seek further relief from the court arising out of it, until 72 hours after service of the affidavit upon the applicant's solicitors; b) in order to make the restraint order effective he should be required forthwith to deliver up his passport to the person serving the order upon him; and c) in order to make the passport order effective a direction should be made to the Tipstaff to arrest the captain in the event that he failed to deliver it up.[46]When on Sunday the judge repented of the Tipstaff order, the passport order and the restraint order he did not do so on the basis that he then considered that he lacked jurisdiction to make them. Again, although we, like the judge, have received no argument to the contrary, I have no present reason to doubt that, however rare its proper exercise, the jurisdiction to make a restraint order fortified by a passport order, introduced by this court in Bayer AG v Winter [1986] 1 WLR 497, extends in the case of a corporate party to a director of it, subject of course, on his application, to early review of its appropriateness in all the circumstances. It is also axiomatic that the Tipstaff can, if expressly authorised, arrest a person, even a non-party only transiently within the jurisdiction, who breaks an order duly served (for example a witness summons to attend court and to give evidence), in order to bring him as soon as practicable before the court.[47]Given that the judge on Sunday resolved that the disclosure order made on Friday against the captain should be served upon him, one might have thought that the judge would thereupon proceed to consider squarely whether, in order to make that order effective, there then existed any lesser need for the three further, collateral orders that he had found to exist on Friday. But in his short written judgment sent to Mr Scorey on Sunday he did not approach the matter in that way. In my view he approached it from the wrong end. He was apprehensive about giving authority to the Tipstaff to arrest the captain in the event of his failure to surrender his passport. He observed that the direction to the Tipstaff might result in the captain's arrest even if he did not understand the order to surrender it. It is the applicant's case that the captain is not only a highly intelligent man but speaks English perfectly, as he had allegedly demonstrated when making depositions in enforcement proceedings brought by the applicant in Canada and as he is said again to have demonstrated at the time of service of the judge's attenuated order upon him on Sunday night, being evidence placed before us today to which I will shortly advert. Moreover, had the judge spoken to Mr Cheesley, the Tipstaff, he would have been told, as I have been told this morning, not only that of course he makes every effort to ensure that he does not make an arrest for breach of an order without being satisfied that the person understands the order but that, to that end, he can, if necessary, make use of a facility to telephone a translation service and there and then to cause the order to be translated to and for the benefit of the person subject to it down the telephone.[48]But, even if such would not have assuaged his concerns, the judge could of course have ordered that no arrest be made without service upon the captain not only of the order in English but also of a translation thereof into Arabic or, perhaps more practicably, without service thereof upon him in the presence of an interpreter who will there and then have translated the order or a specified part of it into Arabic in the captain's presence. The judge could also, however unpalatably from his own personal point of view, have directed the Tipstaff to telephone him, the judge, immediately following any arrest of the captain and to seek further directions prior to detaining him even overnight. Mr Scorey also tells us that, in the course of his telephone conversations with the judge over the weekend, the latter twice articulated to him his concern about the pro forma direction to the Tipstaff to search any premises in which he had reasonable cause to believe that the passport would be found. That particular direction seems to me, in any event, to have been inapt to service on the captain on arrival at the airport and could have been deleted without appreciable loss to its overall effect.[49]The judge's other concern expressed in the judgment on Sunday was that the captain might be arrested before he could obtain legal advice about the effect of the court's order. That is quite true. The pro forma Tipstaff direction makes clear that the person subject to it has the right to seek legal advice and, if arrested, to be given the opportunity as soon as practicable to seek legal advice but that the right does not entitle the person to disobey the order prior to seeking legal advice. Of course every provision in the pro forma order is in principle subject to amendment by the judge but the provision as drawn is, so it seems to me, an elementary feature of any effective order for the delivery up of a passport; and I cannot share the judge's concern about the arrest of a person for a knowing breach of an order without his being given the prior opportunity to take legal advice. The person does not need legal advice about whether to comply with the order for on any view he is legally obliged to do so; but he needs, and as I have said the Tipstaff is required under the pro forma direction to enable him, to seek urgent legal advice about what steps to take once he has complied with it.[50]Thus, in my view approaching the matter from the wrong end, the judge took fright at the Tipstaff order; thereupon concluded that, without the collateral support of the Tipstaff order and in particular of the power of arrest for breach, the passport order might lead to attempted service by the applicant's solicitor or by a private process server without a power of arrest and thus to a degree of disorder, with attendant political and media scrutiny; and thereupon further concluded -- clearly correctly -- that without the passport order the restraint order would be futile.[51]But the result of approaching matters in that way was to leave the disclosure order against the captain hanging limply. The judge did acknowledge the difficulties that would confront the applicant if required to serve the captain other than through the Tipstaff but he did not squarely address the impotence which, by his change of mind, he was conferring upon a disclosure order which he had continued to regard as necessary and had resolved to grant leave to serve. In my view this betrays a logical inconsistency, which, as Rix LJ has just suggested, vitiated the exercise of his discretion.[52]I turn briefly to the evidence placed before us about the attempts on the part of the applicant's solicitor, Mr Gooding, to serve the captain with the judge's attenuated order on Sunday night. Mr Gooding deposes that at about 23.43 the captain came out of the VIP terminal at Gatwick; that he, Mr Gooding, approached him, handed him the order and stated that he was serving him with a worldwide freezing order whereby the assets of IAC were frozen to the extent of the judgment debts in favour of the applicant and whereby IAC was given 48 hours within which to serve an affidavit detailing its worldwide assets.[53]Mr Gooding proceeds to depose that he advised the captain to consider its contents and to obtain legal advice on its implications, whereupon the captain asked why he was being served with the document and stated that he had lawyers. To this, says Mr Gooding, he responded to the captain that he was being served because he was listed as one of the respondents in the order and that the order required him to be served. Thereupon, according to Mr Gooding, the captain said that he understood that but that he still wanted to know why he was being served personally. Mr Gooding thereupon informed him that he should read the order. According to Mr Gooding, the captain then put on his reading glasses and spent a few moments reading the order, specifically the penal notice.[54]The captain then allegedly tried to return the order to Mr Gooding but Mr Gooding sought initially to resist its return to him. Ultimately, however, when it was clear that the captain had understood the order or at least had read it or part of it and was refusing to accept it, Mr Gooding allowed it to be passed back to him and the captain walked away. Mr Gooding adds that, about 20 minutes later in the south terminal of the airport, he again approached the captain and recommended that he should accept service of the order but that the captain said "No way, I am not doing it." and ran away.[55]Such evidence, which of course at this stage we take to be true, only too clearly demonstrates that, free from sanctions, the captain had no intention whatever of complying with the judge's disclosure order and that the judge's second thoughts on Sunday would, if allowed to stand, render the captain able to defy it with impunity by early and permanent departure from England and Wales.[56]The egregious history of the IAC's protracted evasion of payment of its substantial judgment debt to the applicant rightly led the judge on Friday to favour making the wider raft of orders, at any rate on the preliminary without notice basis. His severe attenuation of them was, with great respect to him, unprincipled; and so I agree with Rix LJ that we should allow the appeal so that Friday's orders can be restored and indeed be authorised for service.

Sir David Keene:

[57]I too agree that this appeal should be allowed, largely for the reasons given by both my Lords, although I have to say with somewhat less hesitation than Rix LJ. I wish only to add some brief comments of my own.[58]1) The judge below was undoubtedly exercising a discretion in deciding in his second judgment to "rein in" as he put it the order which he had been prepared originally to make. One recognises the necessary constraints upon this court when considering interfering with such an exercise of discretion. Nonetheless it seems to me that the reasoning of the judge on Sunday 25 April is open to some question, particularly in the penultimate paragraph of his judgment. He recognises that, without the Tipstaff instructions, the order for the surrender of Captain Kifah's passport and the order restraining him from leaving the jurisdiction were futile. So they too went. But the judge adds:
"I do not consider that the same consideration arises with regard to an order that the second respondent provide information about IAC's assets."
That statement is unexplained, and it is not for my part easy to understand why that disclosure order was not also rendered potentially futile by the judge's decision, given the factual circumstances of this case. He had clearly recognised in his first judgment that it was necessary to support the disclosure order by the ancillary orders as to passport surrender and non-departure from the jurisdiction of the captain so as to prevent the disclosure order being made in vain: see in particular paragraph 34 of the first judgment. Nothing had happened in the interim to indicate that that proposition no longer held good. The reality therefore seems to be, as Wilson LJ has in effect put it, that the judge's changes to the order on the Sunday torpedoed the disclosure order. It follows that in his second judgment the judge did not properly recognise the full implications of what he was doing. Certainly his reasoning in that penultimate paragraph to which I have referred seems to me to be deficient. That all renders his exercise of discretion open to challenge and to re-examination by this court.[59]2) On the merits then of the discretion, I recognise that Captain Kifah was not a party to the main litigation which gave rise to the judgment debt. In that sense he is a potential witness not a party. But as to that I am much influenced by the fact that Captain Kifah, though not a party to the main litigation, is more than just a potential witness. He is not some extraneous third party. He is the director general of the respondent company IAC. Part 71 of the CPR applies to him. It puts the officers of a company, which is a judgment debtor, in a different position from the world at large. The court under that provision has the power to order such an officer to provide information about the company's means and indeed to attend court to do so. This power cannot be exercised in respect of a person who is outside the jurisdiction, as was held by the House of Lords in the case of Masri v Consolidated Contractors Limited No 4 [2009] UKHL 43, [2009] 3 WLR 305 but Captain Kifah is not outside the jurisdiction according to the evidence before us, and he is someone therefore against whom an application could have been made under Part 71. Of course, in such a situation, the same issues as to supporting orders, ancillary orders, would still have arisen as arise in the present proceedings, but the fact that Captain Kifah was not a party to the original proceedings but only an officer of the respondent company would patently not be of such significance given that context.[60]3) There are safeguards embodied in the order now sought by the appellant. Were the Tipstaff to find that he had to exercise his powers of arrest and detention the arrested person would have to be brought before a court:
"…as soon as practicable and in any event no later than the working day immediately following the arrest"
[61]Those safeguards are not as substantial as those applying when an application to commit for contempt is made, but that is inevitable, because in a situation such as is now described in the evidence the lengthier procedures involved in an application to commit would be likely to provide an opportunity for the person in question to leave the jurisdiction and thereby to render futile the orders of the court.[62]It seems to be the case that the order now sought, involving the surrender of passport by a foreign national present in this jurisdiction, restraint on his leaving the jurisdiction for a limited time and the use of the Tipstaff to enforce those parts of the order is as yet without precedent. That of course is not a bar to making such an order. If the court were not prepared to do something for the first time, the law would never develop. It does give one pause for thought, as Rix LJ has emphasised. Those powers clearly should be exercised with great caution. Nonetheless the court should in my judgment seek to exercise its powers to ensure that its orders are enforced. As Hobhouse LJ put it in In re B. (Child Abduction: Wardship: Power todetain)[1994] 2 FLR 479, the power of arrest or detention "is legitimate because it is necessary to the implementation of the order of the court". Balancing those considerations against the possible prejudice to Captain Kifah, I am satisfied to the extent possible on an ex parte hearing that the order originally made below should now be made and that this appeal therefore should be allowed.

Order

Appeal allowed