Marketmaker Technology Ltd & Ors v CMS Group Plc & Ors

A party who commences proceedings submits to the jurisdiction for the ordinary incidents of that litigation, including enforcement of costs orders and contempt proceedings, even if the claim is later stayed or struck out. Submission is established only where the conduct relied on has the single reasonable meaning that the party accepts the court’s jurisdiction. A disclosure undertaking ordinarily extends to documents within the party’s control when disclosure is actually given, and remains continuing until full disclosure. In deciding whether evidence may be given by video link, the court must apply the general rule in Polanski v Condé Nast Publications [2005] 1 WLR 637 and balance all the interests of justice. Avoidance of legal consequences does not, by itself, justify refusing a video-link facility.

The defendants applied to commit the fourth claimant, Mr Taher, for contempt for allegedly failing to comply with an undertaking to disclose documents relating to his means of paying costs orders. Mr Taher applied to set aside orders permitting alternative service, requiring further disclosure and requiring him to attend the committal hearing in person.

The jurisdiction challenge relied on his residence in China and the absence of permission to serve out of the jurisdiction. The other applications concerned the construction of his undertaking, the court’s power to enlarge it, and whether he should be permitted to give evidence by video link. The court also considered whether the committal application adequately identified the alleged contempt.

1. Jurisdiction. The jurisdiction application was refused. By commencing proceedings in this jurisdiction, the fourth claimant submitted to the jurisdiction in respect of the ordinary incidents of those proceedings, including costs orders and an application to commit for contempt relating to enforcement. That submission was not withdrawn when the claim was stayed or struck out. The court also accepted that later conduct, including seeking discharge of the committal order, giving undertakings and serving evidence to contest the committal application, was consistent only with submission. The court applied the test stated in Global Multimedia International Ltd v Ara Media Services [2007] 1 All ER (Comm) 1160.
2. Disclosure undertaking. The undertaking required disclosure of documents within the claimant’s control when disclosure was made, rather than only documents within his control when the undertaking was given. If the October 2007 disclosure was incomplete, the obligation continued until full disclosure. The order made by Swift J. was set aside because the judge had no power to enlarge the undertaking, although setting it aside did not prejudice the defendants’ continuing rights under the undertaking.
3. Video-link evidence. The order requiring personal attendance was set aside under CPR 23.11. The court applied the general rule in Polanski v Condé Nast Publications [2005] 1 WLR 637: a person’s wish to remain outside the United Kingdom to avoid the normal processes of law is not, by itself, a reason to refuse video-link evidence. The defendants’ interest in obtaining the coercive effect of possible imprisonment, the claimant’s unattractive conduct and the delay and cost concerns were relevant, but insufficient. Before the committal allegation had been determined, refusing video evidence would be harsh and would not assist enforcement if the claimant simply remained abroad.
4. Committal notice. Read as a whole, including the draft order attached to it, the application notice adequately alleged both late disclosure and inadequate disclosure. Amendment would serve no useful purpose.
5. The committal hearing was adjourned for directions concerning video-link evidence. Leave to appeal was refused. The defendants were awarded 50 per cent of their costs of the hearing.