“In circumstances where the claimant was insolvent and had reason to believe that substantial assets have been misappropriated it is to be expected that the claimant would wish to recover those assets. Indeed, the claimant is now contractually obliged to use its reasonable endeavours to maximise the recovery of its assets. In those circumstances the suggested inference may also not be a reasonable inference. I have even more doubt as to whether it can be inferred that the claimant’s predominant purpose in bringing proceedings against the first defendant was to eliminate him as a political opponent of the President…However, I hesitate to decide on this application that no such inference can be drawn in the face of the tsunami of evidence which has been served by the defendant about political and economic life in Kazakhstan. It is extremely difficult for this court to make a judgment about that evidence without it (or at least the relevant parts of it) being tested and examined in detail. The inference which the court is being asked to draw may appear unlikely but I am not persuaded that it is unarguable.”
“[126] In summary therefore the circumstances which give reason to believe that the Freezing Order may not provide the Bank with adequate protection against the risk that Mr A’s assets will be dissipated prior to any judgment that the Bank obtains are as follows…His initial disclosure of his assets can now be seen to have been seriously inadequate in that he failed to mention the crucial role of a nominee and the nature of the operating assets (save for one). There are grounds for believing that he wished to make it difficult for the Bank to enforce the Freezing Order… [161] Although Mr Ablyazov has stated that he will obey the orders of this Court that statement has to be considered in the light of his conduct in this action. He has stated that he can be trusted but I have to have regard not only to what he has said but also to what he has done. Consideration of his conduct with regard to disclosure of his assets in August/September 2009 and of his failure to inform Clyde & Co [his then solicitors] of dealings in the Eurasia Tower…has left me unable to trust him not to deal with his assets in breach of the Freezing Order.”
“(i) Mr Ablyazov failed, in breach of the WFO [worldwide freezing order], to disclose his beneficial ownership of the shares in Bubris Investments Limited, a company incorporated in the British Virgin Islands. (ii) Mr Ablyazov, when cross-examined under oath as to his assets, lied to the court when (a) he stated that he was merely the short-term tenant of two properties in London and stated that all the residential properties he owned were included in his schedule of assets and (b) he denied that he was the beneficial owner of shares in FM Company Limited (a company incorporated in the Marshall Islands), Bergtrans Contracts Corp and Carsonway Limited (both being companies incorporated in the BVI). (iii) Mr Ablyazov, in breach of the WFO, dealt with an asset, namely loans held by Stantis Limited (a company incorporated in Cyprus) by assigning them to Nitnelav Holdings Limited in December 2010.”
“It is an inescapable conclusion that in directing a change of the UBO from Mr Batyrgarejev to Mr Kovalenko Syrym Shalabayev was intending to keep secret from the FIA the fact that Mr Batyrgarejev was the UBO of Bubris…Syrym Shalabayev removed Mr Batyrgarejev as UBO because he did not wish the identity of Mr Batyrgarejev as UBO of Bubris to get into the public domain in circumstances where Mr Ablyazov had not disclosed that Bubris was his asset but had revealed in cross-examination as to his assets that Mr Batyrgarejev was his trusted nominee”. (ii). The judge gave separate reasons for distrusting the evidence of the various witnesses who supported the case of mistake: I will refer to the judge’s account of the witnesses below. (iii). The judge was not impressed by the points made by Mr Duncan Matthews QC, who appeared for Mr Ablyazov at the trial as he does again on this appeal: that Mr Batyrgarejev had not been appointed UBO of the other four BVI companies whose UBO was also changed in February 2010; and that in a document dated23 November 2009 which listed a number of companies with the words “Batyrgarejev, Trust for MK” (ie MKA, Mr Ablyazov), those words were not found against Bubris. Neither point, however, demonstrated that his appointment had been or may have been in error; on the contrary, a document of25 November 2009 expressly referred to Mr Batyrgarejev as the “nominal beneficiary owner” of Bubris; and the concept of an express trust reflected cross-examination evidence of Mr Ablyazov in October 2009 about companies which he had admitted owning but which did not include Bubris. (iv). The judge rejected Mr Ablyazov’s case that Mr Sadykov was appointed in May 2010, as distinct from September 2010. The significance of these timings was that it was on26 July 2010 that Henderson J had granted a freezing order against Bubris in the AAA proceedings. That was when Bubris entered as a name into this litigation, ie after May but before September 2010. It appears that it was already in August 2010, that is to say not long after the late July 2010 entry of Bubris into the litigation, that Mr Sadykov was first made a “contact” for Bubris and subsequently a director. Then, on 23 September, a trust deed, backdated to 7 May, showing Mr Sadykov as the UBO, was sent to Mr Shalabayev; and on 24 September Euroguard sent Mr Sadykov’s letter to Mr Kythreotis about being the true UBO of Bubris. The judge concluded: “I am sure that Mr Kythreotis did not learn that Mr Sadykov was the UBO of Bubris in May 2010 and that he only received the letter dated 7 May in September 2010. There can be no reason for [Mr Kythreotis] to admit having given false evidence to the court when faced with contempt proceedings other than that such admission was true…It must follow that the letter was not written in May 2010…”
“I don’t know, my Lord, I don’t know the facts of that. I don’t know about any such facts.”
“The only evidence Mr Aizhulov has given relates to his apparent signature on the Stantis documents. There is no indication that he has given or will give any other evidence. The matter is relevant because the Stantis documents are relied upon by Mr Ablyazov in defence to the allegation of contempt concerning dealing with Stantis’ loans. That allegation was first made on16 May 2011 when the contempt application was issued. The existence of the loans was only discovered by the Bank as a result of the Norwich Pharmacal orders made against Yahoo! In early 2011. Mr Ablyazov’s reliance on the Stantis documents emerged by way of the evidence adduced by him in defence of that allegation much later in 2011. In those circumstances the suggestion that in or about December 2010 Mr Aizhulov made an arrangement with the Ukrainian authorities to give evidence against Mr Ablyazov is fanciful. The relevance of the Stantis documents was not revealed until later in 2011 and there is no other issue on which Mr Aizhulov has given evidence. Nor is there any reason apparent as to why the Ukrainian authorities would benefit from such evidence being given. The suggestion that a deal was done with the Bank in meeting with Mr Prosyankin in 2010 runs up against the same difficulty. The Bank could not have known about the relevance of the Stantis documents until later in 2011 when they were relied upon by way of defence to the Stantis allegation.”
“…the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact – every piece of evidence – relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.”
“…The creation of such documents must cause the Court to exercise caution before accepting as true, or as possibly true, statements made by such witnesses notwithstanding that the creation of such documents may be a necessary practice to prevent the President of Kazakhstan from unlawfully appropriating such assets. 35. In such circumstances the email traffic and other contemporaneous documents which the Bank has been able to obtain are likely to be of considerable assistance to the Court. The cornucopia of material obtained from disclosure, search and Norwich Pharmacal orders against Yahoo!, the Yellow Box strorage facility in north London and from the offices of corporate providers in Cyprus demonstrates the value of such orders…”
“It is probably the case that he lied to protect the location of his brother’s house in Latvia but the fact that he was prepared to lie so blatantly means that I must exercise very great caution before accepting anything else he says.”
“134. Mr Ablyazov’s case provides a good starting point for this discussion. In Mr Ablyazov’s case, the type of contempt was the same as it is here, but Teare J thought he had all the available evidence on the point. That is not the same in this case. There is no doubt that there may be very much more evidence available concerning the AAA Transactions and Mr Ereshchenko’s involvement in them. Indeed, the Bank has not yet been ordered to give disclosure and, according to Mr Hardman, has been careful to disclose only the documents it perceives that Mr Ereshchenko is entitled to receive at this stage. … “135. If the substantive case against Mr Ereshchenko is proved at trial, the court would undoubtedly be in a better position at that stage to determine whether what he said about his recollection and access to documents in December 2010 was clearly false…”
“19. In my judgment, where the court has issued a warrant for the committal of a contemnor and where the contemnor has gone into hiding, being careful whilst giving instructions to his solicitors not to reveal his whereabouts to them, it is just and convenient to issue a mandatory injunction ordering the contemnor to surrender himself to the tipstaff so that he may execute the warrant of committal. There is, therefore, jurisdiction to make the order sought pursuant tosection 37 of the Senior Courts Act 1981 . I do not consider that in this context the Bank needs to establish a legal or equitable right. 20. If that is wrong, then in my judgment the court has inherent jurisdiction to issue ancillary orders designed to make effective orders which it has previously issued. That jurisdiction is confirmed by the authorities to which Mr Smith referred. He has decided to go into hiding, either here or abroad and has sought thereby to frustrate the court’s order. An order that he surrender to the tipstaff will enable the tipstaff to execute the court’s warrant. 21. Mr Matthews made two further points. First, he said that neither section 37 nor the court’s inherent jurisdiction could justify an order designed to deprive a person of his liberty. He described such an order as a “reverse habeas corpus”
“51. In the present case it is not suggested that Mr Ablyazov’s failure to comply with the order for disclosure of assets will impede the court’s ability to conduct a fair trial of the issues in the action. The unless order is sought in order to bring further pressure on him to comply with the disclosure order. That appears to me to be legitimate in principle and to be supported by the authorities relied upon by Mr Smith. Were it otherwise, the court would be powerless when faced with a defendant who refused to comply with an order for disclosure of his assets and when sentenced to be imprisoned for his contempt of court went into hiding in order to avoid the execution of that sanction. 52. The unless order would not be made because the court is indignant that the defendant has flouted the court’s disclosure order, but because the unless order may cause the defendant to reconsider his position and comply, belatedly, with the disclosure order… 53. The authorities relied upon by Mr Matthews do not, in my judgment, suggest that it is illegitimate to make an unless order for such purposes. The principle which they establish is that a defence may be struck out if there is a substantial risk of injustice. 54. Whilst the cases essentially deal with a risk of injustice by reason of the difficulty of there being a fair trial of the issues in dispute, a risk of injustice can also arise by reason of the difficulty of enforcing a judgment caused by a defendant hiding his assets or dealing with his assets prior to trial… 59…Where there is a failure to give full disclosure of assets, the court must also carefully consider whether the failure has given rise to a substantial risk that overall the proceedings would be unfair or unsatisfactory… 62. The Bank’s claims are very large indeed. They run to several billion dollars… 63. Mr Ablyazov’s own estimate of the value of the 17 assets which he has disclosed was itself much less than the total value of the Bank’s claim. There would therefore appear to be a risk, and a substantial risk, that the judgments the Bank seeks will not be fully enforced by execution on the 17 assets disclosed by Mr Ablyazov and, therefore, a substantial risk that justice cannot be done to the Bank without further disclosure… 66. It thus appears to me that, in the interests of overall fairness, the unless order should be granted in respect of the disclosure obligation… 76. So far as the surrender order is concerned, an unless order will be an incentive to comply with the order. Since compliance will enable the tipstaff to execute the warrant of arrest, it is appropriate that it be imposed. If the warrant is not executed, the proceedings will, in that respect, be unsatisfactory because the committal is designed to persuade Mr Ablyazov to comply with the freezing order and so ensure a fair trial in the full sense of that phrase…”
“58. I do not consider that if Mr Ablyazov’s defence is struck out for failing to provide a full affidavit of assets he has been denied a fair hearing of his civil rights and obligations. Such an affidavit is required to ensure a fair resolution of the Bank’s claim against him. He will have a fair hearing of his civil rights and obligations if he provides a full affidavit of his assets. If he chooses not to provide a full affidavit of his assets, then his defence will be struck out by reason of his own actions, not because the court has denied him his entitlement to a fair hearing of his civil rights and obligations.”
“To my mind there must be inherent in that power, the power to make all such ancillary orders as appear to the court to be just and convenient, to ensure that the exercise of the Mareva jurisdiction is effective to achieve its purpose.”
“Parker J. described the plaintiffs’ application and his order for discovery in aid or support of the Mareva injunction and so in a sense they were. But in so far as they relate to the defendant’s assets at past dates as distinct from their present whereabouts their purpose seems to be not so much to help the court or the plaintiffs to locate and freeze particular assets now, as to open the way to incriminating and ultimately punishing the defendant for contempt of court in formerly disobeying the Mareva injunction and/or breaking his undertaking. This purpose emerges not only from the wide terms of the order but from the judge’s comments at the end of his judgment. To that extent the order goes beyond the legitimate purpose of an order for discovery in aid of a Mareva injunction and Robert Goff J.’s order in A v. C and is not necessary for the proper and effective exercise of the Mareva injunction.”
“The judge was clearly dealing with a very evasive litigant…The judge was, in my opinion, fully justified in taking the view that the defendant’s affidavits were so unsatisfactory that he was entitled to refuse to accept their contents at their face value and to order the defendant to make a full disclosure of his financial position…It is true that the judge might have used other measures to put pressure on the defendant to induce him to reveal the true state of his finances… I agree that the power to order discovery in support of a Mareva injunction should be sparingly exercised and if too readily resorted to could easily become a most oppressive procedure. I am sure that the judges in the commercial court have this well in mind. There should be no question of an order for discovery becoming a usual part of the Mareva relief…”
“it is by no means inconceivable that cases, albeit perhaps rare cases, could arise where the court could properly take the view (1) that the defendant in an action appeared determined both to put and keep his assets beyond the reach of the plaintiff and to conceal the true nature and extent of these assets from the court; and (2) that, in the particular circumstances of the case, an immediate order for oral examination or cross-examination of the defendant was the only “just and convenient” way of ensuring that he would not deal with his assets, so as to deprive the plaintiffs in the future of the fruits of any judgment.”
“The court has the power (and, I would add, the duty) to take such steps as are practicable upon an application of the plaintiff to procure that where an order has been made that the defendants identify their assets and disclose their whereabouts, such steps are taken as will enable the order to have effect as completely and successfully as the powers of the court can procure.”
“It is clear, however, that the law in relation to the grant of injunctive relief for the protection of a litigant’s rights pending the hearing of an action has been transformed over the past 10 years by the Anton Piller and Mareva relief which has greatly extended the law on this topic as previously understood, so as to meet the needs of justice. Bearing in mind we are exercising a jurisdiction which is statutory, and which is expressed in terms of considerable width, it seems to me that the court should not shrink, if it is of the opinion that an injunction is necessary for the proper protection of a party to the action, from granting relief, notwithstanding that it may, in its terms, be of a novel character.”
“The object of Ord 24 r 16 is not to punish the offender for his conduct but to secure the fair trial of the action in accordance with the due process of the court...The deliberate and successful suppression of a material document is a serious abuse of the process of the court and may well merit the exclusion of the offender from all other participation in the trial. The reason is that it makes the fair trial of the action impossible to achieve and any judgment in favour of the offender unsafe. But if the threat of such exclusion produces the missing document, then the object of Ord 24 r 16 is achieved. In my judgment an action ought to be dismissed or a defence struck out (as the case may be) only in the most exceptional circumstances once the missing document has been produced and then only if, despite its production, there remains a real risk that justice cannot be done. That might well be the case, for example, if it was no longer possible to remedy the consequences of the document’s suppression despite its production, perhaps because a material witness who could have dealt with the document had died in the meantime, or where, despite the production of the document, there was reason to believe that other documents had been destroyed or remained concealed. But I do not think that it would be right to drive a litigant from the judgment seat without a determination of the issues as a punishment for his conduct, unless there is a real risk that that conduct would render the further conduct of proceedings unsatisfactory. The court must always guard itself against the temptation of allowing its indignation to lead to a miscarriage of justice.”
“Secondly, there is the authority of this court in A. J. Bekhor & Co. Ltd. v. Bilton [1981] Q.B. 923 and other cases that there is an inherent power under what is now section 37(1) to make any ancillary order, including an order for discovery, to ensure the effectiveness of any other order made by the court. This applies in the unusual circumstances of this case. Since the alternative means of appointing a receiver or of making an order under Order 48 are unavailable, the order for disclosure is necessary to render the plaintiffs’ judgment against the I.T.C. effective.” “These cases are all instances of injunctions granted pursuant to section 37(1) of the Act of 1981for the purpose of rendering some other order effective. They provide ample justification for the order made by Millett J. in the present case in aid of the plaintiffs’ unsatisfied judgment.”
“The other point is that it has become increasingly clear, as the English High Court regrettably has to deal more and more often with major international fraud, that the court will, on appropriate occasions, take drastic action and will not allow its orders to be evaded by the manipulation of shadowy offshore trusts and companies formed in jurisdictions where secrecy is highly prized and official regulation is at a low level.”
“73. The attempted perversion of justice is the very antithesis of parties coming before the court on an equal footing… 74. This was, therefore, a flagrant and continuing affront to the court. Striking out is not a disproportionate remedy for such an abuse, even when the petitioners lose so much of the fruits of their labour.”
“161.Article 6 of the Convention requires attention to be addressed to a matter which has always been implicit in cases of this kind, namely that the effect of the court’s refusal to grant relief is that the losing party will be deprived of a trial of his defence on the merits. Clearly, as the judge recognized, that is an important factor. But three points must be borne in mind. First, it is open to a party to consent to judgment being given against him without a trial on the merits…Second, this is not an appeal against the judgments entered against the appellants. The appellants cannot say those orders were wrongly made. Third, the state can impose restrictions on the right of access to court provided that the restrictions serve a legitimate aim, are proportionate and do not destroy the very essence of the right. Here, the legitimate aim in imposing a sanction is to secure compliance with court orders, which in the instant case were made to ensure the effectiveness of freezing orders. The imposition of a sanction is proportionate if it is reasonably necessary for achieving that aim. The essence of the right of access to court is not destroyed because the litigant has the opportunity to seek relief against the sanctions. The refusal of that relief is Convention-compliant if the same tests are satisfied. The legitimate aim remains the same. Proportionality will be met if the overriding objective is met. The essence of the right will not be destroyed even if refused, since the appellants always had the chance to comply with the court orders and to help progress the case to trial.”
“But the focus at Strasbourg is not and has never been whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant’s Convention rights have been violated. In considering the exercise of discretion by a national authority the court may consider whether the applicant had a fair opportunity to put his case, and to challenge an adverse decision…But the House has been referred to no case in which the Strasbourg court has found a violation of a Convention right on the strength of failure by a national authority to follow the sort of reasoning process laid down by the Court of Appeal. This pragmatic approach is fully reflected in the 1998 Act. The unlawfulness proscribed by section 6(1) is acting in a way which is incompatible with a Convention right, not relying on a defective process of reasoning, and action may be brought under section 7(1) only by a person who is a victim of an unlawful act.”
“28. The issue before Briggs J arising from the alleged deficiencies in the respondent’s written evidence related to the effective policing of and ensuring compliance with the protective orders of the court. In these circumstances the court has to make a decision now about the respondent’s evidence that he has no assets or only negligible assets. If the court takes the view that the respondent’s written evidence about his assets and property is incredible, there is no need for cross-examination to establish that it is incredible. This course is pointless and simply postpones appropriate measures for dealing with a person who has submitted incredible evidence to the court. If, however, the court takes the view that the evidence is not incredible and it is contested, the proper course was not to postpone the issue of cross examination, but to order it in order to determine the position on alleged non-disclosure of assets. 29. In my judgment, Mr Marshall has demonstrated that the judge was wrong not to make an unless order in relation to the respondent’s disclosure of assets. I agree with Lindsay J that, on the material before the court, his evidence is incredible and that it is now necessary to make an unless order, which, if not complied with, will result automatically in the respondent being debarred from defending the claim against him.”
“[82]…In a case of deliberate and persistent non-compliance with orders to provide information and deliver documents made in order to safeguard proprietary claims, a proper administration of justice requires that, save in very exceptional circumstances, sanctions imposed should take effect. There were no exceptional circumstances in the present case.”
“[37] I reject Mr Malek’s submission that because the non-compliance with the grounding order will not impact on whether the court can ascertain the truth in the Phase 2 trial, that necessarily makes the barring of the defendants from participating in it disproportionate. I have concluded that, in the circumstances of this case, the breach of the order falls within the second limb of the analysis of Denning LJ in Hadkinson’s case.”
“[33] Lastly, if Mr Colton be right, fraudsters will flourish, since a challenge by the jurisdiction will automatically preclude the court from enforcing, by any realistic sanction, a disclosure order… [38] In my judgment if the court makes an order for disclosure for information or documents it is entitled, in the event of non-compliance, to order that if such non-compliance is persisted in the claimant will be at liberty to enter judgment. Were it otherwise, in many cases the order will be without effect. The making of such an order is of course a discretionary exercise…There are many cases in which it is only an ‘unless’ order that will ensure compliance. Thus in CIBC Mellon Trust Co v. Stolzenberg[2004] All ER (D) 363 (Jun) at [49] and [177] the Court of Appeal agreed with the trial judge that on the facts he had no realistic alternative to making an ‘unless’ order in the face of the persistent defiance of two of the defendants in relation to the disclosure of their assets… [41] As to that I do not accept that the question is solely whether non-compliance will render further conduct of the proceedings unsatisfactory. As Arrow Nominees Inc v. Blackledge and the Marcan Shipping (London) case indicate, the court is entitled to take into account the effect of making, or not making, the order sought on the overall fairness of the proceedings and the wider interests of justice as reflected in the overriding objective. [42] As to those considerations the object of the present case is to compensate the bank for the huge sums allegedly purloined from it by what is said to be a dishonest scheme by securing a judgment against the wrongdoers which can effectively be enforced so as to make a real recovery. In deciding what order to make the court, as I have said, must necessarily take into account on the one hand that absent an ‘unless’ order the bank may effectively be prevented from any recovery, or restricted in the recovery that it might otherwise make…”
“[39] Taking all these considerations into account, I consider that the balance comes down in favour of ordering disclosure by Clydes of all the contact details (past and present) which they hold for Mr Shalabayev. The primary purpose of the disclosure is to aid enforcement of the committal order made by Briggs J on 27 June. In the absence of that order I would probably not have been prepared to make the order sought. But in my view the committal order makes all the difference. All reasonable efforts must now be made to ensure that Mr Shalabayev is apprehended so that he can begin to serve his sentence. It is in the highest degree unsatisfactory that he can still be at large, as a fugitive from justice, when he has solicitors on the record acting for him, and intervening in legal proceedings as and when it suits his purposes. Such a procedure is liable to bring the administration of justice into disrepute, and to give the impression that British justice is an a la carte menu from which he can order at will without ever having to pay the bill…”
“[23]…The order is sought as a remedy of last resort, in a situation where, at the date of the application notice, there had still been no compliance whatsoever with the requirements of the freezing order. Furthermore, experience has shown that, on at least two previous occasions, Mr Shalabayev has been prepared to comply with an unless order. So it seems reasonable to infer that he might be anxious to avoid judgment being entered against him, and that the making of an unless order might prove fruitful.”
“[61] Given the history of the proceedings to date, and his continued disregard for the authority of the court, as exemplified, above all, by the history of the committal proceedings, I think it would be a waste of time to make any order of a less draconian nature. [62] If Mr Shalabayev wants to continue to participate in these proceedings, he must now take this last chance to do what he should have done 11 months ago, that is to say comply properly, and in detail, with the requirements of the freezing order. If he fails to do so, he will, in my judgment, have nobody to blame but himself, and he will have forfeited the right to defend the Bank’s claim against him; although, even then, the possibility of making an application for relief against forfeiture would still be open to him. [63] That final point illustrates that even an unless order is not necessarily the very end of the road, although it does represent the court’s firm and considered statement that this should be the very last chance afforded to the defaulting party.”
“[29] One important factor to bear in mind in the present case is that there are two parties to the litigation and that in seeking to determine how the interests of justice will best be served it is important not to lose sight of the Bank’s very real interest in obtaining information which will enable it to identify the ultimate destination of the funds to which it lays claim. That is unlikely to be achieved without the co-operation, however, grudging, of Mr. Ablyazov. The committal order was intended in part to encourage him to give full and proper disclosure of his assets and to that extent the interests of justice would be better served by bringing him within the jurisdiction of the court. Moreover there are certainly strong grounds for believing that Mr. Ablyazov is in wilful and contumacious default of other orders of the court, despite the explanation he has given in his most recent statement for his refusal to surrender to custody or to make an affidavit giving disclosure of his assets. Much of what he says appears at first sight to be exaggerated and implausible and it is striking that the fears for his personal safety on which he now relies so heavily were voiced only after judgment was given in the committal proceedings. However, they cannot be entirely dismissed, as the judge himself has accepted. It can also be said that, as in the case of Arab Monetary Fund v Hashim, Mr. Ablyazov is doing his best to prevent the Bank from enjoying the fruits of any judgment it may in due course obtain against him and the other defendants and to that extent is abusing the process of the court. He has, for example, dealt with assets in breach of the freezing order and there is evidence to suggest that he is seeking to do so again. He has failed to co-operate with the receivers. There are very strong reasons for thinking that he has left the jurisdiction in breach of the court’s order. All these factors point towards the conclusion that the court should make the order which the Bank seeks, even though a failure to comply would lead to the dismissal of Mr. Ablyazov’s appeal and in turn the striking out of his defence to the substantive claim.”
“[31] In all the circumstances I have come to the conclusion that it would not be in the interests of justice to require Mr. Ablyazov to surrender himself to custody as a condition of proceeding with his appeal. However badly he may have behaved, Mr. Ablyazov is seeking to challenge an order which directly affects his personal liberty. As Potter L.J. observed in Motorola v. Uzan (No. 2), the circumstances will be rare indeed where it will be right to shut a contemnor out from arguing an appeal against an order for committal. I accept that full and proper disclosure of the location of assets which the Bank is seeking to recover is necessary if there is to be a fair trial of the action, but I do not think that an order of the kind now being sought is the right way to protect the Bank’s position. Mr. Ablyazov has not been committed simply for failing to give the disclosure required by the freezing order, but for specific acts and omissions amounting to contempts of court. If Mr. Ablyazov were to succeed in his attempt to have the committal order set aside, the requirement to surrender would disappear. Subjecting him to custody would not then be available as a way of compelling him to give the required disclosure. If his appeal fails, it may at that stage be appropriate to require him to surrender to custody as the price of being allowed to contest the claim, but that is for another day. I do not think that he should be required to surrender to custody as the price of being heard on this appeal.”
“The Court has no need to ascertain in the present case whether and to what extent Article 6(1) requires a decision on the very substance of the dispute (English ‘determination’, French décidera’)”
“80…The purpose of the Convention being to guarantee not rights that are theoretical or illusory but rights that are practical and effective, this right can only be seen to be effective if the observations are actually “heard”, that is duly considered by the trial court. In other words, the effect of Art 6. is, among others, to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant.”
“A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial”
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