JSC BTA Bank v Ablyazov & Ors

The court may compel a contemnor who has gone into hiding to surrender to the tipstaff where that order is just and convenient to make an existing committal warrant effective. It may also require renewed disclosure of assets where earlier non-compliance and the litigation history provide substantial grounds for believing that disclosure remains incomplete.

An unless order may be used to secure compliance with orders supporting the overall fairness and enforceability of proceedings. Its appropriateness depends on the circumstances, including the risk that non-disclosure will restrict enforcement and the prejudice caused by striking out a defence. Where an appeal is pending against the underlying contempt findings, the sanction may appropriately be postponed until seven days after the appeal is determined.

The claimant bank sought mandatory injunctions requiring the first defendant, who had been committed for contempt and had gone into hiding, to surrender to the tipstaff and provide a further affidavit disclosing his assets. It also sought unless orders under which his defences in several related actions would be struck out and judgment entered if he failed to comply.

The application raised issues concerning the court’s jurisdiction, the appropriateness of renewed asset disclosure, the permissible purpose and proportionality of an unless order, the effect of a possible appeal against the contempt findings, and the release of money paid into court as fortification of the bank’s undertaking in damages.

1. Surrender order. The court had jurisdiction under Senior Courts Act 1981, section 37, to grant a mandatory injunction requiring a contemnor who had gone into hiding to surrender to the tipstaff. The order was just, convenient, necessary and appropriate because it would enable execution of the existing committal warrant. Alternatively, the court possessed an inherent jurisdiction to make ancillary orders securing the effectiveness of orders already made. No separate legal or equitable right was required in the circumstances.
2. Further disclosure. A further asset-disclosure order was justified by the established contempt, the findings that assets had not been disclosed, and evidence giving grounds to believe that other companies and assets remained undisclosed. The possibility of an appeal did not prevent the court making an order that was appropriate, valuable and useful. The court was not required to assist the defendant in remaining hidden.
3. Unless order. An unless order could legitimately be used to encourage compliance with orders designed to secure the overall fairness of proceedings. A substantial risk of injustice may arise not only because a fair trial is impeded, but also because non-disclosure may make a judgment difficult to enforce. The court had to balance the risk to the claimant’s recovery against prejudice to the defendant and the practical consequences for the trial.
4. The proposed sanction was therefore imposed, but if the defendant appealed the contempt judgment his defences would not be struck out and judgment would not be entered until seven days after determination of the appeal. The same postponement applied to the surrender order. The unless order applied to all eight actions. If defences were struck out and judgment entered, the £45 million paid into court was to be paid out to the bank subject to any statement by the defendant showing why the undertaking in damages might still be called upon.