Apex Global Management Ltd v FI Call Ltd & Ors

The court dealt with cross-unfair-prejudice proceedings concerning Fi Call Ltd and made a case management order requiring preservation and inventory of electronic accounts and devices relevant to allegations of forged e-mails. A named party, HRH Prince Abdulaziz, was personally required to comply with paragraphs 14 and 15 of Vos J.'s order but declined to do so, relying on a royal conduct protocol and delegating responses to a personal assistant. The judge held that preservation of raw electronic material and personal compliance with the disclosure obligations were essential to the fair trial and to test allegations of forgery. Having regard to the Civil Procedure Rules and the overriding objective, and applying the guidance in Marcan Shipping and related authorities, the judge concluded that an "unless" order debarring the Prince's defence unless he complied with the order was an appropriate and proportionate sanction. The order was held to be compatible with Article 6 rights.

This was a first-instance hearing in the Companies Court arising from two cross-unfair-prejudice petitions concerning the affairs of Fi Call Ltd. The parties were Apex Global Management Ltd and Mr Almhairat on one side and Global Torch Ltd, Prince Abdulaziz, Prince Mishal and Mr Abu-Ayshih on the other. The proceedings involved serious allegations by the Apex parties, including that certain electronic communications implicating Prince Abdulaziz were involved in money laundering and the facilitation of terrorist organisations; the Global parties denied those allegations and said the communications were forged.

The court had previously ordered, at a case management conference convened by Vos J., preservation of all relevant electronic data and a requirement for named parties to file personal statements setting out specified matters (paragraphs 13–15 of the order), including the location and status of servers, backup servers, e-mail accounts and electronic devices. The Prince was expressly made a named party with a personal obligation to provide that information.

The issue before Norris J. was the appropriate sanction for the Prince's failure to comply personally with paragraphs 14 and 15, given that his assistant had provided material on his behalf citing a royal conduct protocol that members of the ruling family do not give statements personally. The judge framed the questions as whether there was real prejudice to a fair trial, whether lesser sanctions would suffice, and whether the striking out or debarring remedy was appropriate in all the circumstances.

The court reasoned that preservation of the raw electronic material and equal personal obligations to disclose were fundamental to examining claims of forgery; permitting the Prince to avoid personal responsibility risked undermining the overall fairness of the proceedings. The judge considered the Civil Procedure Rules and the overriding objective, noted authorities cautioning careful use of striking-out powers (Marcan Shipping London v Kefalas) and authorities on wider fairness considerations (JSC BTA Bank v Ablyazov (No. 3)), and concluded that an "unless" order debarring the Prince's defence unless he complied with the disclosure directions was proportionate. The judge also accepted that such a sanction was compatible with Article 6 rights, referencing Stolzenberg v CIBC Mellon Trust. The judge therefore granted the relief sought in that form.

The court granted the applicant's "unless" relief: Prince Abdulaziz was personally required to comply with paragraphs 14 and 15 of Vos J.'s order or face debarring of his defence. The judge reasoned that personal compliance and preservation of electronic evidence were essential to a fair trial, that permitting the Prince to rely on a royal conduct protocol would prejudice overall fairness, and that the debarring order was a proportionate sanction consistent with the Civil Procedure Rules and Article 6.