Marketmaker Technology Ltd and Others v CMC Group Plc and Others
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE TEARE |
| Judgment Date | 12 June 2008 |
| Neutral Citation | [2008] EWHC 1556 (QB) |
| Court | Queen's Bench Division |
| Docket Number | No. HQ04X01875 |
| Date | 12 June 2008 |
[2008] EWHC 1556 (QB)
Mr. Justice Teare
No. HQ04X01875
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Mr. J. Ferris (instructed by Gersten & Nixon) appeared on behalf of the Claimants.
Mr. L. Emmett (instructed by CMS Cameron McKenna) appeared on behalf of the First and Third Defendants.
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 21 st August 2007 and has been adjourned twice, on 11 th October 2007 and on 18th March 2008.
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 5 th 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.
On 7 th 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.
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 25 th 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.
At the same time, the defendants began to take steps to enforce the costs orders. On 5 th 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 13 th 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.
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.
The defendants' strike-out application was eventually heard on 13 th 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”.
This amounted to an abuse of the court's process by Mr. Taher.
On 27 th February 2006, the claimants filed a notice seeking permission to appeal Stanley Burnton J.'s order of 13 th February. They did not serve a skeleton argument in support of this application until 25 th July 2006. They then sought permission to appeal the order of Stanley Burnton J. dated the 20 th October 2004, made on the basis of his judgments of the 8 th and 5 th October 2004, nearly two years out of time.
The oral examination ordered by Master Tenant was due to take place on 14 th 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 11 th April 2006.
In about March 2006, Mr. Taher completed a questionnaire relating to his means. On 11 th 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.
At the hearing on 11 th 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.
Mr. Taher then attended an oral examination by video link on 29 th 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.
On 21 st December 2006, Mr. Taher issued an application to discharge the committal order and the arrest warrant. This application was originally listed for hearing on 11 th 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.
On 14 th March 2007, Mr. Taher's application was reissued, together with new evidence in support. It was re-listed for hearing on 29 th 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 5 th 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.
Mr. Taher's undertakings were then recorded in the order of Tomlinson J. dated the 29 th March 2007. On 25 th May 2007, the Court of Appeal refused the claimants permission to appeal against the order of Stanley Burnton J. striking out the claim. On 30 th May 2007, Mr. Taher consented to an order pursuant to the undertakings. This order required him to disclose the documents evidencing his assets by 20 th June 2007. He did not do so. He has never...
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