Ministry of Defence v Foxley & Ors

Proceedings subject to prolonged and unexplained inactivity may be struck out where the delay makes a fair trial impossible. The court must consider proportionality and whether lesser remedies can adequately address the resulting injustice. Proceedings involving receiverships were excluded from the automatic stay imposed by the transitional provisions of the Civil Procedure Rules. The public interest in enforcing confiscation orders does not justify maintaining ancient proceedings where disputed issues concern whether assets are proceeds of crime and substantial prejudice has arisen. A declaration of breach of Article 6 may be sufficient in a less serious case, but it will not necessarily be an adequate remedy where delay has made a fair hearing impossible.

Gordon Foxley had been convicted of corruption and made subject to a confiscation order. The Ministry of Defence also obtained judgments and freezing relief in related civil proceedings involving members of his family and companies connected with the corrupt payments. Both sets of proceedings remained subject to restraint or freezing orders, but had been inactive for many years.

The defendants applied to strike out the proceedings for delay. The issues were whether the civil proceedings were automatically stayed under the transitional provisions of the Civil Procedure Rules, whether the court should impose a sanction for delay, and whether a fair trial remained possible in light of the age of the underlying transactions and the prejudice to the family members.

1. Automatic stay. Part 51 and paragraph 19 of the relevant Practice Direction did not impose an automatic stay. The exception for proceedings involving a receivership was expressed generally and permitted receivers to continue dealing with assets without first obtaining removal of a stay. Proceedings in which final judgment had been given were also outside the definition of existing proceedings.
2. Delay and fair trial. The court’s inherent jurisdiction and CPR r. 3.4(2)(c) permitted sanctions for the prolonged delay. Strike-out was a proportionate remedy where the delay was extreme, the underlying transactions were between 15 and 25 years old, factual disputes remained, and the defendants whose property was targeted were not the convicted offender but family members asserting innocence.
3. The public interest in recovering the fruits of crime did not justify a more favourable approach to delay. The Crown had to show that the disputed assets were proceeds of crime, and that issue was not foregone. The absence of activity since 1997 made a fair trial impossible.
4. CPS v Bentham [2005] EWHC 2013 (Admin) was materially different. There, a public announcement of an Article 6 breach was a proportionate remedy because the delay had not prejudiced a fair hearing. Here, the delay and prejudice were substantially more serious.
5. The Article 7 issue arising from Welch v United Kingdom [1995] 20 EHRR 247 was treated as neutral. It had not been authoritatively determined in this case and neither added to nor detracted from the delay arguments.
6. Both sets of proceedings were struck out, except to the extent that final judgments had already been obtained.

First-instance decision. No prior appellate decision is stated in the judgment.