Gaydamak v UBS Bahamas Ltd

JurisdictionUK Non-devolved
JudgeLord Scott of Foscote
Judgment Date28 February 2006
Neutral Citation[2006] UKPC 8
Docket NumberAppeal No 67 of 2004
CourtPrivy Council
Date28 February 2006
(1) Arcadi Gaydamak
(2) Alexandre Gaydamak
Appellants
and
(1) UBS Bahamas Ltd
(2) The Attorney General of the Bahamas
Respondents

[2006] UKPC 8

Present at the hearing:-

Lord Bingham of Cornhill

Lord Hutton

Lord Scott of Foscote

Lord Walker of Gestingthorpe

Lord Brown of Eaton-under-Heywood

Appeal No 67 of 2004

Privy Council

[Delivered by Lord Scott of Foscote]

1

At the conclusion of argument on this appeal (on Tuesday 31 January 2006) their Lordships announced that they would, for reasons to be given later, humbly advise Her Majesty that the appeal should be allowed. These are the reasons.

2

The appeal raises a short procedural point. The appellants before the Board were appellants in an appeal to the Court of Apeal against Austin Davis J's refusal to discharge a restraint order that he had made on 12 April 2002 in respect of the sum, US $9 million or thereabouts, standing to their credit in a joint account with UBS (Bahamas) Ltd. ('the bank'). The restraint order was made pursuant to section 26 of the Proceeds of Crime Act 2000. It resulted from criminal proceedings in France that were being taken, or were about to be taken, against the first appellant. The appellants' appeal was listed for hearing on 22 January 2004 and was called on for hearing when the Court of Appeal sat on that day. But no one was present on behalf of the appellants to prosecute the appeal. So the appeal was struck out pursuant to Rule 37(1) of the Court of Appeal Rules 1965. But Rule 37(2) allows an appellant whose appeal has been struck out owing to his non-appearance to apply to the court by notice of motion, supported by an affidavit, for the appeal to be re-entered for hearing. The court has a broad discretion to deal with the application "as it may deem just".

3

On 6 February 2004 the appellants applied, pursuant to Rule 37(2), for an order directing their struck-out appeal to be re-entered for hearing. The application was supported by an affidavit sworn on the same day, 6 February 2004, by their Bahamian counsel Ms Lockhart-Charles. In her affidavit Ms Lockhart-Charles explained why nobody was present at the court on 22 January 2004 to open the appellants' case on the appeal. It is convenient at this juncture to provide a little more detail of the procedural background.

4

The restraint order had been made on 12 April 2002 on an ex parte application by the Attorney General, the 2nd respondent before the Board. By a summons of 23 May 2002 the appellants applied, inter partes, to Austin Davis J to discharge the ex parte order. At the hearing of the summons Ms Lockhart-Charles appeared for the appellants, Mr Garvin Gaskin for the Attorney General. The bank, too, was represented by counsel.

5

By an order dated 27 January 2003 Austin Davis J dismissed the appellants' application but by a further order made on 31 January (again after an inter partes hearing) he granted the appellants leave to appeal. It is a fair, indeed a compelling, inference that the judge, who presumably had heard submissions from both sides on the merits of an appeal, could not have thought that an appeal would be hopeless.

6

On 10 February 2003 the appellants' Notice of Appeal was filed at the Court of Appeal registry. The Notice of Appeal specified a number of grounds on which the appellants proposed to rely.

7

In the period between the filing of the Notice of Appeal on 10 February 2003 and the calling on of the appeal on 22 January 2004 there were communications by telephone between Ms Lockhart-Charles and the Deputy Registrar of the Court of Appeal, Mrs Demeritte-Francis. Ms Lockhart-Charles has deposed in her affidavit of 6 February 2004 to the content of these communications. No evidence, sworn or otherwise, contradicting or in any way qualifying Ms Lockhart-Charles' account was put before the Court of Appeal on the hearing of the appellants Rule 37(2) application or has been put before the Board.

8

The content of the communications between Ms Lockhart-Charles and the Deputy Registrar is described in paragraphs 12 and 14 of the affidavit. What is said is that at the end of October 2003 Ms Lockhart-Charles told the Deputy Registrar that the appellants wanted to apply for leave to place further evidence before the Court of Appeal but that further time was needed for the evidence to be assembled. The Deputy Registrar asked to be updated in December as to the appellants' progress in preparing for their proposed application. Further telephone communications took place, first in December 2003 and again during the week of 12 January 2004 in the course of which Ms Lockhart-Charles informed the Deputy Registrar that the assembling of the documents and translations intended to be put in evidence was still not complete. On both occasions Ms Lockhart-Charles was given assurances by the Deputy Registrar that the appeal had not yet been set down for hearing and would not be set down during January. It is worth repeating that no part of this account is contested.

9

On 15 January 2004 the registry of the Court of Appeal gave a written notification to the Attorney General that the appeal would be heard on 22 January 2004. A similar notice was sent to the bank. No such notice was sent to the appellants. Provision for the giving of these written notices is contained in Rule 31(2) of the Court of Appeal Rules:

"When the preparation of the Record is completed the Registrar … shall set down the appeal for hearing before the court, and shall thereupon give notice … to the appellant and to all parties upon whom the notice of appeal was served."

It is not contested that a Rule 31(2) notice was not given to Ms Lockhart-Charles or her firm. No explanation for the oversight has been offered. There was, it must be inferred, an administrative oversight in the registry.

10

Receipt of a Rule 31(2) notice is not the only means whereby a litigant, or a litigant's lawyers, may become aware of the date fixed for the hearing of an appeal. There is a notice board at the entrance to the courtroom in which the Court of Appeal sits on which the respective hearing dates of the appeals which have been set down for hearing are specified. Strictly speaking there is no evidence about this notice board but it is referred to in paragraph 25 of the Attorney General's printed case and their Lordships have no reason to doubt the accuracy of what is said. But Ms Lockhart-Charles, who had received assurances from the Deputy Registrar that her clients' appeal would not be set down in January, had no reason to consult the notice board and did not do so (see paras 15 and 16 of her affidavit). She deposed (in paragraph 16) to a telephone call from the registry that she received at about 10.30am on 22 January 2004. She says (at para 17) she was told by a Ms Clarke that the appeal had been set down for hearing that day. She told Ms Clarke that this must be a mistake and recounted the assurances she had been given by the Deputy Registrar. She says that she told Ms Clarke that she would either send an associate down to the court or go there herself if necessary but that Ms Clarke's response was to say that she (Ms Clarke) would get back to her. Ms Lockhart-Charles deposed (at para 18) that she had no subsequent communication from the registry but, on the following day, went to the registry to find out what the position was and was told the appeal had been struck out. None of this is...

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