Masri v Consolidated Contractors International Company SAL & Ors

Civil Procedure Rules Part 71 permits an order requiring an officer of a corporate judgment debtor to attend court and provide information relevant to enforcement, including where the officer is abroad. The order is personal to the officer, but its purpose is limited to obtaining information about the judgment debtor’s assets and affairs.

The court with substantive jurisdiction under Brussels I has ancillary jurisdiction to make such an order. The Evidence Regulation does not provide the exclusive route where the English court orders attendance in England under Part 71. An order may also be served out of the jurisdiction under rule 6.30(2). The court retains discretion, and should consider all the circumstances, including alternative procedures and any obstruction to enforcement.

Mr Masri obtained English judgments against CCIC and CCOG. He applied without notice under Civil Procedure Rules Part 71 for orders requiring TK, a director of CCIC, and SK, a director of CCOG’s corporate director, both domiciled in Greece, to attend court and provide information about the judgment debtors’ assets.

Master Miller set aside the orders and declared that the court lacked jurisdiction. The central issues were whether Part 71 applied to foreign officers, whether Brussels I or the Evidence Regulation precluded the orders, whether an order could be served out of the jurisdiction, and whether the orders should nevertheless be set aside in the exercise of discretion.

1. Disposition. The appeal was dismissed as to SK and allowed as to TK. The order against TK was restored, subject to any remaining issue concerning service.
2. Part 71. An order under Civil Procedure Rules Part 71 is made against, and personally binds, the addressee. The addressee must attend, produce documents in his control and answer relevant questions on oath. The order is ancillary to enforcement of the judgment debt and cannot require information about the officer’s personal assets. An officer of a corporate judgment debtor may therefore be examined about the company’s assets.
3. Foreign officers and corporate directors. The presumption against extra-territoriality is the starting point, but Part 71 is not confined to persons within England. It was sufficiently connected with proceedings in which the corporate judgment debtor had submitted to the English court’s substantive jurisdiction. By contrast, SK was not an officer of CCOG. He was an officer of CCOG’s corporate director, and the natural meaning of rule 71.2 did not extend to him.
4. Brussels I and evidence. The English court’s substantive or plenary jurisdiction under Brussels I carried ancillary jurisdiction to grant the enforcement measures provided by national law. TK was not being sued within article 2 merely because he was subject to an ancillary Part 71 order. The Evidence Regulation was concerned with requests to another Member State court, or evidence taken directly in another Member State. It did not preclude an English order requiring an officer of a judgment debtor to attend in England. The process did not circumvent the Regulation or the underlying Brussels regime.
5. Service and discretion. Rule 6.30(2) was wide enough to permit service out of the jurisdiction of a Part 71 order, without requiring a gateway under rule 6.20. The court retained discretion under rule 71.2(5), despite the mandatory wording concerning issue of an order. Relevant factors included alternative procedures, the judgment debtor’s obstruction, TK’s refusal to undertake to submit to examination in Greece, and the technical nature of the failures in full and frank disclosure. Master Miller had not given proper weight to those matters, so the Court of Appeal exercised the discretion afresh and concluded that justice required restoration of the order against TK.

1. Court of Appeal (Civil Division): Allowed the appeal concerning TK, dismissed the appeal concerning SK, and restored the order against TK subject to any remaining service issues.
2. Queen’s Bench Division, Commercial Court: Master Miller set aside the without-notice Part 71 orders on 20 December 2007 and declared that the court lacked jurisdiction.