Apex Global Management Ltd v FI Call Ltd & Ors

Sanctions for breach of a court order must be assessed in the light of the overriding objective, including enforcement of compliance and the wider fairness of the proceedings. The question is not confined to whether the breach would make a future trial impossible or unsatisfactory. Where deliberate non-compliance with a serious personal preservation obligation risks undermining a fair trial, an unless order debarring the party’s defence may be proportionate. The order should provide a final opportunity to comply before the sanction takes effect.

Two related unfair-prejudice petitions concerning Fi Call Ltd were being prepared for trial. At a case management conference, Vos J ordered the parties and specified individuals to preserve relevant electronic material and provide personally verified information about servers, accounts and devices. Prince Abdulaziz failed to comply personally, relying instead on statements made by his personal assistant under an asserted royal conduct protocol.

The court considered whether the Prince’s defence should be struck out unless he complied with the obligations, or whether a lesser sanction would suffice. The central issues were the fairness of the proceedings, the overriding objective and the Prince’s Article 6 rights.

1. The CPR rules concerning non-compliance with court orders must be applied and interpreted in the light of the overriding objective, including enforcement of compliance. The court may consider overall procedural fairness and the wider interests of justice, not merely whether the breach would make the proceedings unsatisfactory: paras [7]–[11].
2. The preservation obligations were fundamental to resolving allegations concerning forged electronic communications. They were personal obligations imposed on named parties. Compliance through an agent did not discharge the Prince’s responsibility concerning his own accounts, devices and documents: paras [12]–[13].
3. The risk that non-compliance would compromise trial fairness justified a sanction. Although lesser sanctions were considered, an unless order debarring the Prince’s defence was held to be the only proper relief. It was consistent with Article 6 rights and afforded one further opportunity to comply: paras [14]–[15].
4. The relief sought was granted.