National Crime Agency v Amir Azam and Others (No. 2)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 30 October 2014 |
| Neutral Citation | [2014] EWHC 3573 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: ELQ/12/1039 |
| Date | 30 October 2014 |
[2014] EWHC 3573 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Andrews DBE
Case No: ELQ/12/1039
Jonathan Hall QC (instructed by The National Crime Agency) for the Claimant
Andrew Bodnar (instructed by Brett Wilson LLP) for the Second Respondent
Hearing dates: 27 October 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
In January 2011, the National Crime Agency ("NCA") made a claim under s.243(1) of the Proceeds of Crime Act 2002 (" POCA") for a Civil Recovery Order ("CRO") in respect of various properties and accounts owned by the First Respondent, Amir Azam, ("Mr Azam") or held in the names of various members of his family, including his then wife, the Second Respondent Kalsoom Sanam (formerly Kalsoom Amir) ("Kalsoom") who has since divorced him. The NCA claimed that Mr Azam was a career criminal – chiefly a drug dealer and money launderer — and that the properties were all "recoverable property" derived from his criminal conduct.
On 31 July 2014, following the trial of the issue as to whether the claimed assets were "recoverable property", I handed down a judgment [2014] EWHC 2722 (QB) in which I found that the NCA had proved its case in respect of all the assets claimed save one, a property in Spain. For ease of reference, in this judgment I shall refer to the parties and the properties by the same names as in my earlier judgment.
Since all the properties and accounts claimed by the NCA were the subject of a Property Freezing Order ("PFO"), at one stage in the proceedings Kalsoom made an application for an exclusion to enable her to seek advice from specialist counsel regarding any claim she might have in matrimonial proceedings against Mr Azam for financial relief. However that application, which the NCA opposed, was never heard by the court. Instead, a compromise was reached, leading to an order being made by consent by Singh J. on 14 May 2013. That order recited that:
i) The NCA confirmed that for the purpose of determining whether any of the claimed property was "recoverable property" it made no allegation against Kalsoom of participation in her husband's unlawful conduct;
ii) Kalsoom confirmed that for the purposes of determining whether any of the claimed property was "recoverable property" she did not advance any positive case in relation to any alleged conduct by Mr Azam and "accepts that she will be bound by any findings made in this respect against Mr Azam".
iii) Kalsoom and Mr Azam both agreed that to the extent that either of them drew on funds that were subject to the PFO, such funds should be discounted from their entitlement to any share of their matrimonial assets on ancillary relief.
Paragraph 2 of the order directed that the trial of the claim would be heard in two parts:
i) Part 1… to determine the issue of whether the property for the time being subject to the claim is in fact recoverable property by virtue of its having been obtained by or in return for unlawful conduct.
ii) Part 2, to be heard following the handing down of Judgment in relation to Part 1 … to determine the defence of [Kalsoom] and her interest if any under the Matrimonial Causes Act in any of the property for the time being subject to the claim. [Kalsoom] confirms that for the purposes of the trial of Part 2, the Claimant is not limited as to the allegations it may make against her.
Paragraph 4 of the order made provision for directions to be given in respect of Part 2 of the trial either on the handing down of judgment following the trial of Part 1, or at a subsequent directions hearing convenient to the parties. In the event I gave those directions at a hearing on 24 September 2014.
Paragraph 3 of the order of Singh J directed that the trial should be heard by a judge with concurrent jurisdiction to sit in the Queen's Bench Division and the Family Division, presumably because it was then contemplated that the judge would have to determine an issue between the NCA and Kalsoom as to Kalsoom's " interest, if any, under the Matrimonial Causes Act in any of the property for the time being subject to the claim." However, matters took a rather different turn, as I shall explain, and I have not been called upon to determine whether Kalsoom has any interest in any of the recoverable property under that or any other statute.
In the light of that order, Kalsoom and her legal representatives played no part in Part 1 of the trial. However, her first four witness statements and a further statement she made in proceedings brought by her stepson Sohail Amir in the Family Division on 26 July 2012 were in the trial bundle and were referred to in the course of evidence and submissions. So were the transcripts of interviews of Kalsoom which were carried out by Ms Davison of the NCA and another interviewing officer, Emma Smith (with the assistance of an interpreter, and in the presence of her solicitor) in July 2010. I also made references to her written evidence in the course of my judgment.
As I explained in that judgment, these proceedings were brought under CPR Part 8 and no order was ever made directing that they be made subject to the Part 7 procedure. Nevertheless the NCA served Points of Claim and some of the Respondents, including Kalsoom, served Points of Defence which helped to define what was in issue between them. The Points of Claim went through various amendments, including an amendment for which, exceptionally, I gave permission during the course of the hearing of Part 1 (whilst refusing permission for another): see paragraphs 45–54 of my previous judgment. Kalsoom's counsel, Mr Bodnar, did not see that version of the Points of Claim until he received the trial bundles for Part 2.
Kalsoom's Points of Defence was served in August 2011 together with Kalsoom's 4 th witness statement in which she deposed to the breakdown of her marriage in May 2011. She stated that she had not spoken to Mr Azam since then, and that she was in the process of preparing a power of attorney which would enable a lawyer in Dubai to issue and prosecute divorce proceedings. Once those proceedings were concluded, it was her intention to register the divorce in the United Kingdom. Her 5 th witness statement, dated 21 st October 2014, provided an update. There have been no formal amendments to the Points of Defence although, as I shall explain, Kalsoom's case has undergone some refinements.
Half of the properties claimed in the proceedings (and declared by me to be recoverable property) were acquired prior to Mr Azam's marriage to Kalsoom. I decided that one of those acquired afterwards, the Spanish Property, is not recoverable property. However, it is the subject of a freezing injunction. Quite apart from any difficulties posed by the fact that it is real estate situated outside the jurisdiction, any claim by Kalsoom for financial provision to be made for her and her daughter Zahra out of that untainted property or its net proceeds of sale would be competing with claims by the NCA for execution of the costs awarded to it against Mr Azam.
Offley Place was purchased in Mr Azam's sole name in July 2002 at the time of the move to Dubai, largely using the proceeds of sale of Watery Lane. Kalsoom has made no claim to it, and it played no role in Part 2 of the trial. One of the two remaining properties, Thurza Court, was transferred into Kalsoom's sole name by her father-in-law Mohammed Azam, then the registered owner, on 1 May 2002. Kalsoom's Points of Defence denied that the transfer was an act of money-laundering, but accepted that she was unable to give any evidence as to the source of the funds used for its purchase. However, if it was established by the NCA that Thurza Court had been purchased with funds which were recoverable property, she sought to set up a defence to the NCA's claim under s.266(3)(a) of POCA.
Thurza Court was the only property to which Kalsoom raised this (or any other) defence in her Points of Defence. The remaining property is 2a Wheatash Road. The land on which that property was subsequently built was purchased and registered in the joint names of Kalsoom and Mr Azam. Like Thurza Court, it was used as an investment; they never lived there. The NCA seeks a CRO in respect of Kalsoom's share in that property as well as Mr Azam's share. Paragraph 20.1 of Kalsoom's Points of Defence stated that to the best of her knowledge the funds used to purchase the land were derived from the rentals of Thurza Court. In her 4 th witness statement she said that she remembered paying £13,000 from her Barclays Account to solicitors named Simon & Co on 19 August 2003, and that the property was registered in (her and her husband's) joint names because she was providing part of the purchase price from funds which had been intended for her exclusive benefit. She confirmed, as she had in interview, that she had no idea how the money to fund the development of that plot of land was generated. The development was managed entirely by Mr Azam.
In that witness statement Kalsoom stated that she was limiting her response to the NCA's claim to Thurza Court and Wheatash Road (those being the two properties in which she had a proprietary interest). In my earlier judgment I found that both Thurza Court and Wheatash Road were acquired with the proceeds of Mr Azam's criminal conduct or with funds derived from property acquired with the proceeds of such conduct. The findings that are of particular relevance so far as Kalsoom is concerned are in paragraphs 16 and 246–247...
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