Momson v Azeez

Relief from a debarring sanction under Civil Procedure Rules 1998 Part 3.9 requires structured decision-making. The court must consider the specified factors, any other material circumstances and the overriding objective, then assess the case in the round. Where ordered disclosure is necessary for a fair trial, a sanction barring a defence may serve a legitimate aim and be proportionate under Article 6, particularly where the litigant had further opportunities to comply but failed to do so. Refusal of relief was therefore upheld where proceeding without disclosure would have been manifestly unfair.

Ms Momson claimed beneficial interests in properties owned or formerly owned by Mr Azeez. Mr Azeez defended the claim and counterclaimed concerning one property. At a pre-trial review, he consented to extensive disclosure and information orders. After continued non-compliance, an unless order barred him from defending and pursuing his counterclaim unless he complied.

On the first day of trial, the Central London County Court refused relief and proceeded without hearing his case. Briggs J dismissed his appeal and exercised the discretion afresh, giving judgment on [2008] EWHC 623 (Ch). The issues before the Court of Appeal were whether the ordered disclosure was necessary for a fair trial, whether refusal of relief was proportionate under Article 6, and whether the court had to assess the case overall rather than merely review the Part 3.9 factors.

The appeal was dismissed. Lord Justice Rimer gave the judgment, with Lord Justices Aikens and Wall agreeing.

1. Second appeal. Because Briggs J had exercised afresh the discretion that had been before Judge Marshall, the question was whether his reasoning justified his decision to uphold the sanction. The Court of Appeal was not required to reconsider independently whether Judge Marshall’s reasoning had justified her decision.
2. Fair trial and disclosure. The ordered property files, bank statements and related information were accepted before Briggs J as necessary for a fair trial of Ms Momson’s claims. The Court of Appeal could not substitute a different factual view on that issue. Without the disclosure, permitting Mr Azeez to defend and give evidence would have created a manifestly unfair trial.
3. Part 3.9 exercise. The court applied the guidance in Stolzenburg and Others v CIBC Mellon Trust Co Ltd and Others [2004] EWCA Civ 827. The exercise under Civil Procedure Rules 1998 Part 3.9 required structured decision-making. The court had to consider the Part 3.9 factors, any other circumstances requiring attention and the overriding objective, then stand back and assess the case in the round. Briggs J had done so and was entitled to refuse relief.
4. Article 6. Refusal of relief against a debarring sanction is Convention-compliant where the sanction serves a legitimate purpose, is proportionate and does not destroy the essence of access to court. Here, the purpose was to secure compliance with orders necessary for a fair trial. Mr Azeez had further opportunities to comply and did nothing sufficient to do so.
5. Orders. The appeal against Briggs J’s order was dismissed. Permission to appeal against Judge Marshall’s final order was refused, and the stay of execution was lifted.

• Court of Appeal (Civil Division): The appeal against Briggs J’s order was dismissed. Permission to appeal against Judge Marshall’s final order was refused and the stay was lifted.
• High Court of Justice, Chancery Division: Briggs J dismissed the appeal against the unless order and upheld the refusal of relief from the debarring sanction, exercising the discretion afresh: [2008] EWHC 623 (Ch).
• Central London County Court: Judge Cowell made the unless order. Judge Marshall refused relief on the day fixed for trial and subsequently made an order after hearing Ms Momson’s case alone.