Marketmaker Technology Ltd & Ors v CMS Group Plc & Ors [2008] EWHC 1556 (QB)

Case No HQ04X01875[2008] EWHC 1556 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of JusticeDate Thursday, 12 th June 2008
Before
MR. JUSTICE TEARE
B E T W E E N:
Between
MARKETMAKER TECHNOLOGY LIMITED & Ors.ClaimantCMC GROUP PLC & Ors.Defendant
Transcribed by BEVERLEY F. NUNNERY & COOfficial Shorthand Writers and Tape TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HPTel: 020 7831 5627 Fax: 020 7831 7737
Mr. J. Ferris (instructed by Gersten & Nixon) appeared for Claimants.Mr. L. Emmett (instructed by CMS Cameron McKenna) appeared for First and Third Defendants.
J U D G M E N T
[1]There is before the court an application by the first and third defendants, CMC Group Plc and Peter Cruddas, to commit the fourth claimant, Mr. Naser Taher, for contempt. That application was issued on 21st August 2007 and has been adjourned twice, on 11th October 2007 and on 18th March 2008.[2]There is also before the court an application by the fourth claimant, Mr. Taher, that certain orders previously made by the court be set aside. This application was issued on 5th June 2008. Yesterday I heard argument on the fourth claimant’s application first because it is logical and convenient to do so. Before dealing with that application it is necessary to set out a summary of the procedural history to-date. For this purpose I rely with gratitude upon the summary set out by counsel for the first and third defendants in his skeleton argument. It is a lengthy summary but it is necessary to set it all out.[3]On 7th June 2004, the claimants brought an application without notice for wide-ranging injunctive relief against the first and third defendants. Some of the relief which the claimants sought was granted by Fulford J. in an order of that date. In fact, as Stanley Burnton J. found in the return hearing, the application was not urgent and it should not have been made without notice. Mr. Taher and the claimants must have been planning the application for some significant time because they had produced extensive documentation in support of it. The only justification for urgency cited by Mr. Taher had been an imminent meeting to take place upon the day of the application. In fact, as Stanley Burnton J. pointed out, the time difference between London and Hong Kong meant that the meeting must already have taken place. Mr. Taher must have known this. For this and other reasons, Stanley Burnton J. concluded that Mr. Taher and the other claimants had not given full and frank disclosure before Fulford J. He determined that the injunction should not be continued and awarded the defendants their costs on the indemnity basis.[4]The court’s findings of impropriety were not limited to Mr. Taher’s conduct in obtaining the injunctions. The court also found that once the injunctions were replaced, Mr. Taher treated them as “a powerful negotiating tool or weapon” so as to give rise to a concern that they were being abused. After Stanley Burnton J. declined to continue the injunctions, and the claimants had been deprived of their negotiating weapon, they took no serious steps to prosecute their claims. By the end of 2004, a number of costs orders had been made against Mr. Taher and the other claimants, including a default costs certificate in the sum of £334,491.84 issued pursuant to Stanley Burnton J.’s indemnity costs order referred to above.[5]Therefore, on 25th May 2004, more than seven months after judgment was given on the injunction application, the defendants issued an application to strike out the claim unless the claimants paid the costs orders which had, to that date, been made against them.[6]At the same time, the defendants began to take steps to enforce the costs orders. On 5th July 2005, Master Tenant made an order requiring Mr. Taher to disclose documents evidencing his assets and to undergo an oral examination pursuant to CPR 71. The defendants’ strike-out application was listed for hearing on 13th July 2005. At the door of the court, Mr. Taher’s lawyers produced a number of draft applications, supported by at least 76 pages of witness statements and 560 pages of exhibits. The evidence in question advanced two excuses for the claimants’ failure to prosecute their claims, first, that their previous solicitors, Elston & Germain, had not kept them properly informed of the progress of the proceedings, and, second, they were impecunious. They also stated that from then on they would play a proper part in the proceedings.[7]Because there was insufficient time for the defendants’ legal representatives to review the extensive evidence which Mr. Taher had produced at the last minute, Master Tenant adjourned the hearing. Master Tenant did, however, order Mr. Taher to disclose documents evidencing the serious allegations he had made against his former solicitors. In the event, Mr. Taher never did disclose those documents, preferring to allow his allegations to lapse.[8]The defendants’ strike-out application was eventually heard on 13th February 2006, again before Stanley Burnton J. He made an order that unless the claimants paid sums on account of costs, and by way of security, the proceedings would be struck out. No such payments were made, and the claims were automatically struck out. Mr. Justice Stanley Burnton made a number of observations about Mr. Taher’s conduct, including the following: 1. Mr. Taher must have known when he made his witness statements in support of his original application, and when reviewing the claimants’ particulars of claim, that he was putting forward bad claims. 2. Mr. Taher had continued to use the proceedings to put extraneous pressure on the defendants, including by making anonymous communications to adjourn ... 3. Mr. Taher’s behaviour was summarised as follows: “We have regrettably a pattern of unreliable evidence by Mr. Taher of extravagant claims of unjustified claims of once the lack of merit of most of the claims had been revealed as a result of the hearings in July 2004, and a judgment on the injunctions, inaction, save where at the eleventh hour it was called for in order to keep these proceedings alive. We have a pattern of disregard for court orders, failure to pay costs orders, notwithstanding, so far as some orders are concerned, protestations that they will be complied with, albeit late”. 4. This amounted to an abuse of the court’s process by Mr. Taher.[9]On 27th February 2006, the claimants filed a notice seeking permission to appeal Stanley Burnton J.’s order of 13th February. They did not serve a skeleton argument in support of this application until 25th July 2006. They then sought permission to appeal the order of Stanley Burnton J. dated the 20th October 2004, made on the basis of his judgments of the 8th and 5th October 2004, nearly two years out of time.[10]The oral examination ordered by Master Tenant was due to take place on 14th February 2006. Mr. Taher did not attend and Dobbs J. made a suspended committal order on that date. The oral examination was re-listed for 11th April 2006.[11]In about March 2006, Mr. Taher completed a questionnaire relating to his means. On 11th April 2006, Mr. Taher once again failed to attend the oral examination. This time he was represented by counsel and tendered a witness statement citing his father’s health as the reason for non-attendance.[12]At the hearing on 11th April 2006, Butterfield J. made an order that, among other matters,(1) the suspension of the committal order made by Dobbs J. be lifted,(2) a warrant be issued for Mr. Taher’s arrest, and(3) the oral examination take place by video link.[13]Mr. Taher then attended an oral examination by video link on 29th June 2006. However, he did not disclose all the documents he was required to disclose concerning his assets. Among the omissions were his personal bank statements. Therefore, it was not possible for the defendants to use the oral examination to obtain the information they required for enforcement.[14]On 21st December 2006, Mr. Taher issued an application to discharge the committal order and the arrest warrant. This application was originally listed for hearing on 11th January 2007. After the defendants had pointed out a number of material inaccuracies in the evidence served on Mr. Taher’s behalf, Mr. Taher’s lawyers removed the application from the list.[15]On 14th March 2007, Mr. Taher’s application was reissued, together with new evidence in support. It was re-listed for hearing on 29th March 2007. The defendants opposed this application principally because the deficiencies in Mr. Taher’s disclosure during 2006 had prevented an effective oral examination. They therefore considered that Mr. Taher’s obligation pursuant to the order of Master Tenant dated the 5th July 2005 had not been fulfilled. However, following negotiation, the defendants agreed to consent to the discharge of the committal order but only on the conditions that Mr. Taher,(1) agreed to pay the defendants’ costs of the application, and(2) undertook to consent to and then comply with a further order that he, (i) disclose documents evidencing his assets or explaining in an affidavit why such documents were not in his possession, and (ii) undergo a further oral examination on those documents. Without these undertakings, the defendants would not have agreed to the committal order and arrest warrant being discharged.[16]Mr. Taher’s undertakings were then recorded in the order of Tomlinson J. dated the 29th March 2007. On 25th May 2007, the Court of Appeal refused the claimants permission to appeal against the order of Stanley Burnton J. striking out the claim. On 30th May 2007, Mr. Taher consented to an order pursuant to the undertakings. This order required him to disclose the documents evidencing his assets by 20th June 2007. He did not do so. He has never paid the defendants’ costs as he was required to do pursuant to the order of Tomlinson J. Shortly afterwards (probably on 20th July 2007, which appears to have been the date of the witness statement filed in support), Wilson Barker, the solicitors who had acted for Mr. Taher since April 2006, issued an application under CPR 42.3 for a declaration that they had ceased to act for him. On 24th July 2007, Master Leslie made an order in these terms, which also provided that Wilson Barker’s application notice, and the evidence served in support of it, should be filed in a sealed envelope marked “not to be opened without the permission of the Queen’s Bench Judge or Master”.[17]Mr. Taher had never given an address for service within the jurisdiction other than that of his solicitors. He did not give a new address for service within the jurisdiction under CPR 6.5(ii) after Wilson Barker ceased to act for him. Therefore, when the defendants came to issue the present application, they applied for an order for alternative service under CPR 6.8. The alternative would have been to serve Mr. Taher at his usual or last known residence in China under CPR 6.5(vi). This would have needed to be done through diplomatic channels and would have taken three to six months.[18]I granted the defendants an order under CPR 6.8 on 21st August 2007. The present application was then listed for hearing on 11th October 2007. late in the afternoon on 9th October 2007, a new firm of solicitors, Gersten & Nixon, served a notice of acting for Mr. Taher. Gersten & Nixon had made informal contact with the defendants’ solicitors two weeks earlier, as Mr. Marks has explained.[19]The following day, on 10th October 2007, Mr. Taher served the evidence and documents purporting,(1) to comply with the undertaking, and(2) to explain why he had not complied earlier as he was advised to do. In the event, it was necessary to adjourn the present application with the hearing before King J., at which Mr. Taher was represented by counsel ... a directions hearing. The matter was eventually re-listed by the defendants in January 2008 pursuant to the order of King J. Mr. Kureshi’s second affidavit was sent to Mr. Taher on 7th March 2008.[20]On 13th March 2008, Gersten & Nixon, like Wilson Barker before them, obtained an order under CPR 42.3 declaring that they had ceased to be solicitors for Mr. Taher. They stated in conversation with the defendants’ solicitors that Mr. Taher had co-operated in obtaining this order. Once again, on the termination of his solicitors’ retainer, Mr. Taher failed to serve a notice of acting as a litigant in person under CPR 42.2 and failed to provide an address for service within the jurisdiction pursuant to CPR 6.5(ii).[21]The application was re-listed for hearing before Swift J. on 18th March 2008. As he had done at the hearing before Master Tenant in July 2005, and before King J., Mr. Taher produced a substantial quantity of evidence at the last minute. This time an affidavit was sent to the defendants’ solicitors by email 15 minutes before the commencement of the hearing. Mr. Taher also instructed an agent to deliver a hard copy of the March affidavit to the court, which was done at 11.25 am. Mr. Taher did not instruct any legal representatives to attend the hearing on his behalf.[22]The March affidavit included what purported to be an application notice seeking an adjournment of the hearing and an order permitting Mr. Taher to give evidence by video link. Mr. Taher undertook to pay the costs of issuing this application within five days of the March affidavit, but there is no evidence the application in question was ever formally issued. Moreover, Mr. Taher claimed in the March affidavit that it had been served late as a result of his impecuniosity and that he had composed it without the aid of legal advice.[23]Once again, as a result of Mr. Taher’s late service of evidence, it was necessary to adjourn the application. However, in adjourning the application, Swift J. made an order, which, among other matters,(1) made clear that Mr. Tehar was required to attend court for cross-examination, and(2) clarify the nature of Mr. Tehar’s disclosure obligations pursuant to the undertaking. Mr. Tehar served further evidence on 18th April 2008. The April affidavit raised for the first time the possibility that Mr. Tehar would challenge the court’s jurisdiction in relation to this application. He indicated at paragraph 4 of the April affidavit that he would shortly issue an application to this effect. In fact Mr. Tehar did not do so until 5th June 2008, when he issued the application notice, to which I have already referred. Mr. Tehar’s witness statement in support of this application states that he will shortly send the defendant a sworn version thereof. MR. JUSTICE TEARE: Just before proceeding with my judgment, I understood yesterday that the claim had been stayed, but that chronology states that it was set aside. MR. FERRIS: My Lord, that was my understanding at the time that I read the skeleton argument. I intended to look at that last night but it escaped my notice. I will check that now against the documents.[24]I deal first with the question of jurisdiction, the application to set aside the order of myself made on 21st August 2007. In essence, the submission made by counsel on behalf of the fourth claimant is that since Mr. Tehar is resident in China, it was therefore necessary to obtain permission to serve out of the jurisdiction the application notice seeking an order that the fourth claimant be committed for contempt. That was not done, and the omission was not, and cannot be, rectified, either by obtaining an order dispensing with personal service, pursuant to RSC Ord. 52, r. 3(iv), or by obtaining an order for service by alternative means pursuant to CPR 6.8. Those orders, which were made on 21st August 2007, ought to be set aside.[25]The order of the court made on 21st August 2007 gave leave to the fourth claimant to apply to set aside the order within 21 days of service. That time has long since elapsed. An appropriate extension of time was therefore sought. In support of the submission that the orders made in August 2007 should be set aside, reliance was placed on certain parts of the CPR, in particular Part 6, point 18, and certain authorities, in particular Fry v Moore [1889] 23 QB 395, Wilding v Bean [1891] 1 QB 1000, Re Tucker [1987] 2 All ER 23, City & Country Properties v Camaly [2006] EWCA Civ. 1879, and Collier v Williams [2006] EWCA Civ. 20. Reliance is also placed on passages in Dicey & Morris, in particular rules 22 and 29.[26]It is not necessary to review those authorities, because the submission is mistaken. The fourth claimant, in conjunction with the first to third claimants, commenced an action in this court against the defendants. By doing so, the fourth claimant submitted to the jurisdiction of this court the determination of his claim. Having done so, the fourth claimant submitted to the incidents of such litigation (see Dicey & Morris, paragraph 11-131 and The Republic of Liberia v Gulf Oceanic [1985] 1 Lloyd’s Rep. 539 at page 544, column 2 per Oliver L.J.). Thus, had the defendants wished to bring a counterclaim against the fourth claimant, they could have done so without the need to obtain permission to serve that counterclaim out of the jurisdiction. The defendants have not brought a counterclaim but they have obtained an order for the payment by the fourth claimant of costs incurred by them in responding to the claim brought against them in this court. They wish to enforce that order against the fourth claimant. They have so far failed to do so. In support of their continuing endeavour to enforce that order, they have issued an application to commit the fourth claimant for contempt, the contempt being his alleged failure to provide all the documents in his control which relate to his means of paying the amounts due in respect of costs.[27]The order for costs, and the ensuing application to commit for contempt, are ordinary incidents of the claim brought by the fourth claimant in this court against the defendant. There is, in my judgment, no need for the defendants to obtain permission to serve the application out of the jurisdiction and so establish this court’s jurisdiction over the fourth claimant in the matter of the application to commit for contempt, because he has already submitted to the jurisdiction of the court in respect of that application, since it is an ordinary incident of the claim which he has brought against the defendants. Counsel’s submission would have had force had this been a case where permission to serve out was required in order to establish jurisdiction over the fourth claimant, but it is not such a case.[28]Counsel for the fourth claimant submitted that this analysis is not apt where the claim brought by the fourth claimant has been struck out or stayed. It is, says counsel, a defunct claim and, accordingly, the application for contempt is a fresh matter which stands alone and apart from the now defunct claim. If such an application is to be brought against the fourth claimant when he is in China, permission to serve him out of the jurisdiction is necessary.[29]Counsel’s argument is, in my judgment, mistaken. The claim of the fourth claimant has been stayed or struck out for the reasons which I have related. However, that circumstance cannot affect the submission to the jurisdiction inherent in the fourth claimant bringing a claim against the defendants. It cannot, as it were, withdraw that submission.[30]Apart from that point, that permission to serve out was required, it was not suggested that the order dispensing with personal service and providing for service by an alternative means ought not to have been made. Since there is no merit in the application, and the application could and should have been made in October 2007, when the matter came before King J., I refuse an extension of time in which to seek to set aside the orders made in August 2007. If, contrary to my decision, time ought to have been extended, I would have dismissed the application on the grounds that the fourth claimant had submitted to the jurisdiction of the court by commencing proceedings against the defendants.[31]It was also submitted that the fourth claimant had submitted to the jurisdiction by seeking to set aside the committal order in March 2007, giving undertakings in lieu of that order and by submitting evidence in October 2007 with a view to contesting the merits of the defendants’ August 2007 application to commit for contempt. I agree with that submission.[32]It is not necessary for me to decide the issue, and so I will express the reasons for my decision shortly. In considering whether these actions amounted to a submission, the test to be applied is set out in Global Multimedia International Ltd. v Ara Media Services [2007] 1 All ER (Comm) 1160. At paragraph 27, Sir Andrew Morritt said: “The test to be applied in determining whether any particular conduct amounts to a submission to the jurisdiction was considered by Coleman J. in Spargos Mining NL v Atlantic Capital Corp. reported only in (1995) Times, 11 December, but quoted in full by Patten J. in SMAY Investments v Sachdev [2003] EWHC 474 (Ch) at [41] ... I reproduce the whole of the quote as set out in that para [41] from the judgment of Patten J: ‘In approaching the question of submission, I have in mind the following authorities. In Astro Exito Navagacion SA v WT Hsu, otherwise known, more pronounceably, as The Messiniaki Tolmi [1984] 1 Lloyd’s Reports, 266, Goff L.J. said at p. 270, ‘Now a person voluntarily submits to the jurisdiction of the court if he voluntarily recognises, or has voluntarily recognised, that the court has jurisdiction to hear and determine the claim which is the subject matter of the relevant proceedings. In particular, he makes a voluntary submission to the jurisdiction if he takes a step in the proceedings which in all the circumstances amounts to a recognition of the court’s jurisdiction in respect of the claim which is the subject matter of those proceedings. The effect of a party’s submission to the jurisdiction is that he is precluded thereafter from objecting to the court exercising its jurisdiction in respect of such claim. Whether any particular matter, for example an application to the court, amounts to a voluntary submission to the jurisdiction must depend upon the circumstances of the particular case.’ In [Sage v Double A Hydraulics Ltd [1992] The Times, 2 April 1992 TLR 165], Farquharson L.J. said (and this is a report of the judgment which is not reported in oratio recta): ‘A useful test was whether a disinterested bystander with knowledge of the case would have regarded the acts of the defendant, or his solicitors, as inconsistent with the making and maintaining of his challenge’. In arriving at the view to be imputed to the disinterested bystander, it seems to me that one has to bear in mind that there will be an effective waiver, or a submission to the jurisdiction, only where the step relied upon as a waiver, or a submission to the jurisdiction, cannot be explained, except on the assumption that the party in question accepts that the court should be given jurisdiction. If the step relied upon, although consistent with the acceptance of jurisdiction, is a step which can be explained also because it was necessary or useful for some purpose other than acceptance of the jurisdiction, there will, on the authorities, be no submission ... If the well-informed bystander had been left in doubt because what the defendants had done was equivocal, in the sense that it was explicable on other grounds in addition to agreement to accept the jurisdiction of the court, then the conclusion must be, on the authorities, that there would have been no submission to the jurisdiction. The representation derived from the conduct of the party said to have submitted must be capable of only one meaning”. ‘In approaching the question of submission, I have in mind the following authorities. In Astro Exito Navagacion SA v WT Hsu, otherwise known, more pronounceably, as The Messiniaki Tolmi [1984] 1 Lloyd’s Reports, 266, Goff L.J. said at p. 270, ‘Now a person voluntarily submits to the jurisdiction of the court if he voluntarily recognises, or has voluntarily recognised, that the court has jurisdiction to hear and determine the claim which is the subject matter of the relevant proceedings. In particular, he makes a voluntary submission to the jurisdiction if he takes a step in the proceedings which in all the circumstances amounts to a recognition of the court’s jurisdiction in respect of the claim which is the subject matter of those proceedings. The effect of a party’s submission to the jurisdiction is that he is precluded thereafter from objecting to the court exercising its jurisdiction in respect of such claim. Whether any particular matter, for example an application to the court, amounts to a voluntary submission to the jurisdiction must depend upon the circumstances of the particular case.’ In [Sage v Double A Hydraulics Ltd [1992] The Times, 2 April 1992 TLR 165], Farquharson L.J. said (and this is a report of the judgment which is not reported in oratio recta): ‘A useful test was whether a disinterested bystander with knowledge of the case would have regarded the acts of the defendant, or his solicitors, as inconsistent with the making and maintaining of his challenge’. In arriving at the view to be imputed to the disinterested bystander, it seems to me that one has to bear in mind that there will be an effective waiver, or a submission to the jurisdiction, only where the step relied upon as a waiver, or a submission to the jurisdiction, cannot be explained, except on the assumption that the party in question accepts that the court should be given jurisdiction. If the step relied upon, although consistent with the acceptance of jurisdiction, is a step which can be explained also because it was necessary or useful for some purpose other than acceptance of the jurisdiction, there will, on the authorities, be no submission ... If the well-informed bystander had been left in doubt because what the defendants had done was equivocal, in the sense that it was explicable on other grounds in addition to agreement to accept the jurisdiction of the court, then the conclusion must be, on the authorities, that there would have been no submission to the jurisdiction. The representation derived from the conduct of the party said to have submitted must be capable of only one meaning”.[33]Having applied that test, I concluded that the actions of the fourth claimant, to which I have referred, were only consistent with a voluntary submission to the jurisdiction. Belatedly, the fourth claimant expressly challenged the jurisdiction by letter dated the 5th April 2008 and in an affidavit sworn on 18th April 2008, but that was too late.[34]I now consider the application to set aside the order of Swift J. in April 2008, “Pursuant to the fourth claimant’s undertaking recorded in the order of Tomlinson J. dated the 29th March 2007 (the 2007 order) the fourth claimant is to disclose by 11th April 2008 all documents falling within all the categories identified in the schedule to the 2007 order relating to the period from 1st January 2004 to the date hereof, such obligation to continue in relation to documents which come into the fourth claimant’s possession between the date hereof and the hearing of the first and third defendants’ application”.[35]This application is made pursuant to CPR Part 20.3, paragraph 11, which provides as follows, “1. Where the applicant, or any respondent, fails to attend the hearing of an application, the court may proceed in his absence. 2. Where:(a) the applicant, or any respondent, fails to attend the hearing of an application, and(b) the court makes an order at the hearing, the court may, on application, or of its own initiative, relist the application”. (a) the applicant, or any respondent, fails to attend the hearing of an application, and (b) the court makes an order at the hearing, the court may, on application, or of its own initiative, relist the application”.[36]I consider that it is appropriate to relist and therefore rehear this matter. The fourth claimant did not attend the hearing before Swift J. and was not represented. Further, counsel for the first and third defendants accepted that he had not sought the order in question.[37]The reason why it is sought to set aside this order is that it is said that Swift J. had no power to enlarge the undertaking given in March 2007 by the fourth claimant and that the effect of her order was to enlarge the undertaking. I must first deal with the meaning of the undertaking. The undertaking, or, at any rate, the material part of it, is in these terms, “The fourth claimant undertakes to consent to an order requiring him, within 21 days:(i) To disclose all documents in his control which relate to his means of paying the amounts due under the costs orders, including, but not limited to, those documents listed in the schedule attached hereto, and(ii) in so far as any documents listed in the schedule are not in his control, to swear an affidavit explaining why such documents are not in his control and what has become of them”. (i) To disclose all documents in his control which relate to his means of paying the amounts due under the costs orders, including, but not limited to, those documents listed in the schedule attached hereto, and (ii) in so far as any documents listed in the schedule are not in his control, to swear an affidavit explaining why such documents are not in his control and what has become of them”.[38]In my judgment, the ordinary and natural meaning of that undertaking is that the fourth claimant undertakes to disclose those documents within his control at the time when he gives such disclosure. The only alternative is that he undertakes to disclose those documents within his control at the date of the undertaking. However, there can be no sensible reason for permitting the fourth claimant not to disclose relevant documents which come within his control after the date on which he gives the undertaking but before he gives disclosure. For that reason, I consider that the natural meaning of the undertaking is that he undertakes to disclose those documents within his control at the time when he gives disclosure.[39]The fourth claimant gave disclosure in October 2007. He says it is complete. If he is right, then he has no further obligation pursuant to his undertaking. In such circumstances the order made by Swift J. would extend his obligations. It is accepted on behalf of the defendants that Swift J. had no power to extend the obligation of the fourth claimant beyond that contained in the undertaking, but it is said that the disclosure given in October 2007 was not complete and that in those circumstances there is an extant obligation pursuant to the undertaking to disclose relevant documents in the control of the fourth claimant. Thus, by reason of his failure to give full disclosure, there is, as a matter of construction of the undertaking, a continuing obligation to disclose relevant documents which are within his control up until the time when he gives full disclosure.[40]I agree with that submission. Thus, if the disclosure in October 2007 was incomplete, there is, in effect, a continuing obligation until complete disclosure is given. Since the adequacy of the disclosure remains to be decided, this order of Swift J. should be set aside. It is common ground that the judge had no power to widen the extent of the undertaking and, therefore, setting it aside cannot prejudice the defendants.[41]I now deal with the application to set aside the order of Swift J. in March 2008, that the fourth claimant attend the hearing of the application to commit in person. The basis upon which this court has jurisdiction to set aside that order is, again, CPR 23.11. If there is good reason to set it aside, I consider it is appropriate to exercise the power under CPR 23.11 for these reasons. Firstly, the fourth claimant was not present at the hearing and was not represented. Secondly, there is a tension, and a possible inconsistency, between two parts of the order. They are: paragraph 2, which provides, “The fourth claimant attend the hearing in person and the defendants have permission to cross-examine him, as to whether he has complied with his undertaking recorded in the order of Tomlinson J. dated the 29th March 2007”; and paragraph 7, which provides, “The fourth claimant’s applications brought on the date hereof be adjourned”. The application brought on the date hereof by the fourth claimant was as follows. He applied for an order,(1) that the application for committal be adjourned for the first open date after 90 days, and(2) a video conference be arranged on the first open date after 21 days. He says, “I wish to have the application dealt with at the hearing before Swift J. on 18th March 2008”.[42]The second part of that application, which requests a video conference, was adjourned. That adjournment might suggest that his application to give evidence by video link had been adjourned, yet the order that he attend in person suggests that the judge had rejected any such application. There is no transcript of the hearing, and no transcript of the judge’s decision, or any reasons for it. Counsel who attended the hearing on behalf of the defendants was not able to resolve the tension between the two orders that I have mentioned or, at any rate, not with certainty.[43]I have heard submissions from both sides on the question of whether the fourth claimant should have leave to give evidence by video link, including, importantly, submissions on the relevance of the decision of the House of Lords in the Polanski case. I am told that there were no such submissions before Swift J.[44]It is common ground that since October 2007, the fourth claimant has been saying that he wished to give evidence at the committal hearing by video link. In essence, what is now said on his behalf is that fairness requires that on an application to commit for contempt he should be able to give oral evidence by video link from China. He prefers not to come to this jurisdiction because he may be served with a bankruptcy petition and may be served at any time with a writ ne exeat regno (an order that he shall not leave the jurisdiction). It is said that the decision in Polanski (properly understood) enables him to adopt that stance.[45]It should be noted that the language used by the fourth claimant to describe his reasons for wishing to give evidence by video link in the draft order which was provided to the court is as follows, “Attendance at the court of England would, ‘Put him in jeopardy of arrest and imprisonment and service of a bankruptcy petition’.”[46]I was informed this morning that the defendants undertake not to serve a bankruptcy petition, or apply for a writ ne exeat regno whilst the fourth claimant is in the jurisdiction for the purpose of attending the hearing of the application to commit, and they also undertake not to draw the presence within the jurisdiction of the fourth claimant to the attention of his former wife. I note those undertakings but they do not, in my judgment, enable me to dismiss the fourth claimant’s fears because it seems from the language of his draft order that he fears committal to prison in these proceedings should the court find against him.[47]On behalf of the defendants, it is said, having regard to Annex 3 in the practice direction to CPR 32, that leave to give evidence by video link should not be permitted for several reasons. Firstly, it will lead to delay. The fourth claimant has waited until the eve of the hearing to make this formal application, which suggests that his real intention is to adjourn the application. It is said that this was his tactic in October 2007 and again in March 2008. Secondly, the court will have less control over the giving of his evidence than it would if he gave evidence in court. When he last gave evidence by video link, it is said that his then solicitor interfered with the proceedings. Thirdly, when the costs of an adjournment are taken into account, taking of evidence by video link may not be cheaper. Fourthly, his reasons for refusing to give evidence in court are unattractive. He wishes to avoid the consequence of his own contempt. Where a person does not wish to attend court in person in order to frustrate the very proceedings that the court is engaged upon, this is contemptuous and is a good reason for not exercising the discretion to allow him to give evidence by video link in his favour.[48]The annex to CPR 32 enjoins the court to have regard to considerations of cost but also to what is beneficial to the efficient, fair and economic disposal of the litigation. Guidance as to how to exercise the discretion when the applicant wishes to give evidence by video link, because he wishes to avoid the operation of the law, is given in the case of Polanski v Condė Nast Publications [2005] 1 WLR 637. The facts of that case are well-known. Roman Polanski was a fugitive from justice. He did not wish to come to England to give evidence because he feared that he may be extradited to the USA. The House of Lords held that he should be able to give evidence by video link and so avoid the processes of the law.[49]I note, in particular, the following passages from the speeches of Lord Nicholls and Lord Hope, who were in the majority, along with Baroness Hale. Lord Nicholls said, at paragraph 17:
“The trend on matters of this kind is to look broadly at the requirements of justice. Whether the use of the court’s procedures in a particular way would bring the administration of justice into disrepute or, as it is sometimes put, would be an affront to the public conscience, calls for an overall balanced view. This does not mean the courts now apply lower standards in the administration of justice or that the public conscience is now less easily affronted. Rather, it means the courts increasingly recognise the need for proportionality. The sanction must be appropriate having regard to all the circumstances. Indeed, an over-rigid interpretation of the requirements of public policy in this field may be counter-productive. A legal principle based on public policy which ignores the consequences for the parties can itself bring the administration of the law into disrepute. It may also involve a breach of the parties’ rights under article 6 of the European Convention on Human Rights.”
[50]Then in paragraph 20, Lord Nicholls said:
“Against this background I turn to consider the point of legal principle raised by this appeal. A fugitive from justice is unwilling to come to this country to give evidence in person in civil proceedings properly brought by or against him. Can that be a sufficient reason for making a VCF order? Or would such an order, made for that reason, bring the administration of the law into disrepute?”
[51]At paragraph 21 he said:
“These questions did not arise in past years. In the past oral evidence required physical presence. But recent advances in telecommunication technology have made video conferencing a feasible alternative way of presenting oral evidence in court. The issue before the House is whether the development of this new facility should ensure for the benefit of fugitives from justice as much as it does for other parties to litigation.”
[52]In paragraph 26 he said:
“It may seem unattractive that a person can, at one and the same time, evade justice in respect of his criminal conduct and yet seek the assistance of the courts in protection of his own civil rights. But the contrary approach, adopted in the name of the public interest, would lead to wholly unacceptable results in practice. It would mean that for so long as a fugitive remained ‘on the run’ from the criminal law, his property and other rights could be breached with impunity. That could not be right. Such harshness has no place in our law. Mr. Polanski is not a present-day outlaw. Our law knows no principle of fugitive disentitlement.”
[53]Then in paragraph 28:
“Fourthly, in the situation under consideration a VCF order will not assist the fugitive’s evasion of justice. Whether a VCF order is made or not, the fugitive will not come to this country. He will not put himself at risk of arrest. In the present case, come what may, Mr. Polanski’s longstanding evasion of justice will continue. It will be unaffected by the court’s decision on whether to make or refuse a VCF order. The effect of making a VCF order will be different. In the present case the effect will be to relieve Mr. Polanski from one of the disadvantages of his fugitive status, namely, that he cannot travel freely to a country which has a relevant extradition treaty with the USA. To that extent a VCF order will enable Mr. Polanski to sidestep one of the adverse consequences of his own criminal conduct and flight from justice. A VCF order will enable him to present his evidence orally to an English court in proceedings properly brought by him here, without being physically present in the court room.”
[54]Then paragraph 31:
“But overall the matter which weighs most with me is this. Despite his fugitive status, a fugitive from justice is entitled to invoke the assistance of the court and its procedures in protection of his civil rights.”
[55]In paragraph 33:
“But the general rule should be that in respect of proceedings properly brought in this country, a claimant’s unwillingness to come to this country because he is a fugitive from justice is a valid reason, and can be a sufficient reason, for making a VCF order.”
[56]Lord Hope agreed with the speech of Lord Nicholls and said this at paragraph 60:
“As Lord Nicholls points out, it would not be satisfactory for your Lordships to dispose of this issue, as the Court of Appeal did, by saying that it all depends on the circumstances ... A general rule must be identified. The question then is, what is the general rule to be? Is the fact that the applicant for an order under CPR r. 32.3 wishes to remain outside the United Kingdom so that he can avoid the normal processes of the law in this country a sufficient reason in itself for refusing to allow him to give evidence by means of a video link? Or is the court, as a general rule, not entitled to decline to make the order on this ground?”
[57]At paragraph 63, Lord Hope said:
“The general rule ought not to depend on where or when the crime was committed. So it should be capable of being applied generally to all fugitives, irrespective of the jurisdiction in which the crime was committed and irrespective of the particular processes which the authorities might wish to pursue against him were he to set foot in this country.”
[58]At paragraph 65, he said:
“This brings me to what I see as the critical factor. It is the factor that leaves me in no doubt that the general rule should be that the fugitive’s unwillingness to come to this country is not in itself a reason for refusing to allow his evidence to be given through a video conference link. This is that the granting or refusing of the order will have no effect whatever on the claimant’s continued status as a fugitive. The granting of the order will not help him to escape from the normal processes of the law, nor will declining to grant the order do anything to assist them. This is because he is already beyond the reach of those processes. So long as the claimant remains where he is, and irrespective of whether or not the order is made, those processes will be incapable of reaching him if he is a member of that class of fugitives that cannot be extradited.”
[59]Then in paragraph 66 Lord Hope said:
“His reason for asking for the order to be made is so that he can give evidence in a case where, leaving aside issues of public policy, he has a legitimate interest in doing so. The effect of refusing the order will not be to assist the normal processes of the law. Its only effect will be to deny him access to justice. I think that Eady J. was right to see this as the crucial point which justified the making of the order in this case. But now that we are looking for a general rule, I would hold that the appellant’s case falls within the generality of cases where the fact that the claimant wishes to remain outside the United Kingdom to avoid the normal processes of law in this country is not a ground for declining to allow him to remain abroad and give his evidence by VCF.”
[60]The defendants seek to distinguish the decision in Polanski on three grounds. The first of these grounds is that the defendants have a clear interest in Mr. Taher being subject to the threat or coercion of imprisonment in the hope that he may provide information about his means of meeting the costs orders. This is a distinguishing point, because in the Polanski case, Condė Nast had no relevant interest in Mr. Taher giving evidence in person and would suffer no prejudice if his evidence were given by video link.[61]The second distinguishing factor is said to be that the reason why Mr. Polanski would have been deprived of his legal rights by being unable to give VCF evidence was that he would on no condition ever have been prepared to come to England, for fear of arrest. But in Mr. Taher’s case, credit card statements, which have been disclosed, indicate that he has been prepared to come to London in December 2007.[62]Thirdly, it is said that there is no suggestion that if Mr. Taher is not ordered to attend, he will simply stay away from the United Kingdom forever.[63]I accept the first point is a point of distinction between the present case and Polanski. However, it is not, in my judgment, a reason for departing from the general rule established by Polanski. Rather, it is a factor, the advantage the defendants hope to obtain from his giving evidence in court, to weigh in the balance when considering where the interests of justice lie.[64]As to the second and third points, I am not satisfied that they are material points of distinction. Although the fourth claimant has visited England over Christmas 2007, staying at the Hyatt Regency Hotel and making purchases at Selfridges, there is no evidence that his presence was made known to the defendants. It seems more probable than not that the fourth claimant will not visit England to give oral evidence on the application to commit him for fear that if he did so, and was disbelieved in his evidence, he might be committed to prison.[65]In exercising my discretion, I therefore have in mind the general rule, now established by the Polanski case, in particular, as stated by Lord Hope in paragraph 66, namely, “I would hold that the claimant’s case falls within the generality of cases where the fact that the claimant wishes to remain outside the United Kingdom to avoid the normal processes of law in this country is not a ground for declining to allow him to remain abroad and give his evidence by VCF”.[66]I have taken into account also the benefit which the defendants hope to obtain by the fourth claimant giving oral evidence in this court, namely that being subject to the threat of imprisonment, he will tell the truth about his means. I also take into account that by seeking an order that he give evidence by video link, he is seeking to frustrate what may be, if his evidence is not believed, the consequence of the committal application, namely his committal to prison.[67]However, these matters are not sufficient to dissuade me from applying the general rule in Polanski. I have in mind two particular considerations. Firstly, the outcome of the committal application is not yet known. The defendants believe they have a strong case. But it would, in the face of the fourth claimant’s protestations of innocence, be harsh and unfair to deny him the modern facility of giving evidence by video link before the question whether he is contempt or not has been determined. Secondly, denying him the facility of giving evidence by video link will not aid him to avoid being committed for contempt. It seems that he can avoid that, if the giving of evidence by video link is refused, simply by not coming to England. There was no suggestion that an order of committal for contempt could in some way be enforced in China if he gives evidence in person but not if he gives evidence by video link.[68]I do not regard the arguments based on efficiency and cost as being cogent enough to override these considerations. Of course, the position of the fourth claimant is deeply unattractive. He has willingly exposed the defendants to the normal processes of law in this country but declines to expose himself to them. He wishes to take advantage of a modern facility in litigation, the ability to give evidence by video link, but is unwilling to expose himself to the consequences of his evidence being disbelieved. He has, for whatever reason, delayed until the last moment before seeking to set aside Swift J.’s order. He has done this before, in October 2007 and March 2008. This has resulted in the hearing of the committal application being delayed. But the adoption of a deeply unattractive position is not a good reason for denying the fourth claimant an incident of a modern fair trial, namely the ability to give evidence by video link. It is tempting to say, when one has regard to the manner in which the fourth claimant’s actions have delayed these proceedings, that fairness to the defendants requires that the fourth claimant’s application be dismissed, but the court should resist that temptation where, firstly, it is common ground that the fourth claimant has been seeking to give evidence by video link since October 2007, and, secondly, he protests his innocence of the charge of contempt and expresses a wish to give evidence on that issue.[69]For these reasons I consider it appropriate, pursuant to CPR 23.11, to set aside the order of Swift J. that the fourth claimant attend the committal hearing in person, and to give leave for him to give evidence by video link on the hearing of the committal application. It will be necessary to make directions in that regard.[70]There is one final matter with which I am asked to deal. Counsel for the fourth claimant has said that the wording of the application notice is not as clear as it should be. The practice direction to RSC 52, paragraph 2.6(ii), provides as follows, “The application notice must set out in full the grounds on which the committal application is made and must identify separately and numerically each alleged act of contempt including, if known, the date of each of the alleged acts”.[71]It is said that the wording of the application notice appears to complain only of the date when disclosure was provided and not also of the inadequacy of that disclosure. The relevant parts of the notice are as follows, “We, CMS Cameron McKenna, on behalf of the defendant intend to apply for an order (a draft of which is attached) that: 1. A warrant be issued for the fourth claimant’s arrest, and ancillary orders, because the fourth claimant has been guilty of contempt of court in failing to comply with an undertaking he gave to the court by his solicitor on 29th March 2007 that he would by June 2007 disclose documents evidencing his assets and/or swear an affidavit explaining why such documents were no longer in his control”.[72]It is to be noted that the wording of the reasons for the requested orders does not follow the language of the undertaking. However, the application notice refers to the draft order which is attached to the notice. It states the reasons for making the requested orders as follows, “And it appearing to the satisfaction of the court that the fourth claimant has been guilty of contempt of court in failing to disclose all documents within his control relating to his means of paying amounts due under the costs orders to be made against him in the present proceedings by 20th June 2007 in breach of the undertaking he gave to the court by his solicitor on 29th March 2007”. That statement of reasons reflects the language of the undertaking and makes clear that the complaint is also made of the adequacy of the disclosure.[73]Both parties requested me to say whether the wording of the application notice was adequate or not. I consider that when read as a whole, including, in particular, the draft order which is referred to in the body of the notice and is attached to it, there can be no doubt the complaint of the defendants relates not only to the date when disclosure was given but also to the adequacy of that disclosure. It is not suggested that counsel for the fourth claimant, or the fourth claimant himself, is in doubt as to the allegation made against him. To require an amendment to the notice setting out the language to be found in the draft order attached to the order would simply increase costs for no useful purpose.[74]It follows from my decision as to evidence by video link that this hearing must be adjourned. It is necessary to consider any appropriate directions.

[LATER]

[75]I refuse you leave to appeal, and my reasons are, essentially, firstly, I think Polanski covers this case, and, secondly, in view of the need to get on with the committal application and hear the evidence by video link, I am not satisfied you have identified a compelling reason for the appeal.

[LATER]

[76]I do not consider it appropriate simply to reserve the costs of today until after the determination of the committal application. It is far better to deal with the matter now, when the issues are fresh in my mind.[77]The defendants, effectively, seek their costs on four of the issues. They won on jurisdiction, they lost on the video link application.[78]The jurisdiction point is a discrete point. The fourth claimant has raised it very, very late. It was unmeritorious and failed, and ordinarily, therefore, the defendants should get their costs of that issue.[79]So far as the costs of the video link issue is concerned, the fourth claimant has won on that. It would be a strong thing in those circumstances to order that he should pay the defendants’ costs of arguing that issue, even if he should have brought this matter on before.[80]So far as the costs of the construction issue -- namely the extent of the fourth claimant’s obligations under the undertaking -- that was an issue in which, in reality, there was very little dispute between the parties and took up little time.[81]I consider it appropriate to give effect to those matters not by ordering costs on an issue basis but by awarding the defendants a proportion of their costs of today, and I will order that the defendants have 50 per cent of their costs of, effectively, the hearing of the matters which I have dealt with.

Cited in 5 later judgments