Asia Islamic Trade Finance Fund Ltd v Drum Risk Management Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Popplewell |
| Judgment Date | 17 December 2015 |
| Neutral Citation | [2015] EWHC 3748 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | IN THE HIGH COURT OF JUSTICE No. CL-2015000487 |
| Date | 17 December 2015 |
Mr. Justice Popplewell
IN THE HIGH COURT OF JUSTICE No. CL-2015000487
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Rolls Building
Mr. L. Akka QC and Miss. C. Tan (instructed by Reed Smith LLP) appeared on behalf of the Claimant.
THE DEFENDANTS did not appear and were not represented.
(As approved by the Judge)
On 4th December 2015 I found that the second, third and fourth defendants (respectively "Arex", "ASD" and "Mr. Dogan") were in contempt of court for failures to comply with the disclosure provisions in a freezing order made by Flaux J on 25th June 2015. I adjourned sentence and penalties until today.
The history of the proceedings and the detail of the contempts are set out in my judgment of 4 December which was served on Mr. Dogan together with the order and notice of today's hearing.
Yesterday a woman presented herself at the Rolls Building to file a bundle of papers on behalf of Mr. Dogan. She identified herself as Ms. Çelik of Çelik Law and Consultants, who have acted as Turkish lawyers advising Mr. Dogan. The documents were in part in Turkish. They had not been provided to Reed Smith LLP, the claimant's solicitors, despite the previous history of admonishment when the same thing had happened on two previous occasions, as I described in my earlier judgment. It must have been clear to Mr. Dogan and to his Turkish advisers that such conduct was unacceptable as made clear as recently as 8 December when Reed Smith served the 4 December judgment and order and drew attention to this hearing, reiterating once again that if any material was to be relied upon at this hearing it had to be served on Reed Smith. I infer that the last-minute production of these documents, and the failure to provide them to the claimant's solicitors, was intended to derail the present sentencing hearing.
It has not been possible for me in the time available to conduct a full analysis of all the new documents, some of which are in Turkish. Some of them appear to refer to some assets in the form of bank accounts of Arex and ASD. It is, however, perfectly clear on a preliminary perusal of the documents that they fall very far short of compliance with paragraphs 11 and 12 of Flaux J's order. There is no affidavit. Mr. Dogan has not said in terms that he does not know the answers to any of the four questions posed in paragraph 12 of Flaux J's order. The material does not give, or even purport to give, a full account of the assets of Arex, ASD or Mr. Dogan at the dates required by Flaux J's order or my order of 9 October 2015, nor does it identify value, location or details of the assets.
It is clear that Mr. Dogan is well aware of this hearing and has chosen not to attend or be represented or to make any representations. It is clear that he has still not complied with paragraphs 11 and 12 of Flaux J's order and remains in contempt. The extent to which there may have been some partial compliance remains unclear as a result of the deliberately late and tactical filing of documents yesterday.
In those circumstances, I consider the appropriate course to be to proceed to pass sentence today on the basis of the contempts I found proved on 4 December 2015, without taking any account of the documents filed yesterday. I shall give liberty to the relevant defendants to apply to vary or remit my sentence on the ground that they have either wholly or in part purged their contempt, should they choose to do so. Any such application will have to be made in accordance with the Civil Procedure Rules. It will have to be issued and served on the claimant's solicitors and there will also have to be served at the same time as the application any evidence which is relied upon, whether or not that evidence has previously been supplied informally to the court. I have no doubt that Mr. Dogan, who has the benefit of advice from Turkish lawyers, will understand this requirement.
I was referred to a number of relevant authorities, including Crystal Mews Limited v Metterick & Others [2006] EWHC 3087 (Ch) at paras.8 and 13, Trafigura Pte Ltd v Emirates General Petroleum Corporation [2010] EWHC 3007 (Comm), JSC BTA Bank v Solodchenko [2011] EWHC 2908 (Ch), JSC BTA Bank v Solodchenko (No 2) [2012] 1 WLR 350 at paras.52 to 57 and 66 to 67, Templeton Insurance Limited v Thomas & Panesar [2013] EWCA (Civ) 35 at para.42, JSC VTB Bank v Skurikhin [2014] EWHC 4613 (Comm) and ADM Rice Inc v Corporacion Comercializadora de Granos Basicos SA [2015] EWHC 2448 (QB). From those authorities I derive the following principles which are applicable to...
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